Witch Hunt: The thin line between justice and politics

When political operative Steve Pigeon was charged with a raft of political corruption charges by state Attorney General Eric Schneiderman and the U.S. attorney’s office, it was, he claimed, old scores being settled. It was a “witch hunt.” When a congressional ethics watchdog found there was a “substantial reason to believe” Rep. Chris Collins violated federal law and congressional rules in his dealings with a biotech company, Collins said the panel was acting on behalf of partisan legislators and organizations – again a “witch hunt.” And former U.S. Attorney Preet Bharara’s investigation into campaign fundraising on behalf of former New York City comptroller and 2013 mayoral candidate John Liu, which recently resulted in more than $26,000 in fines? You guessed it. “Witch hunt.”

This is nothing new. For years prosecutors and investigators have been accused of being overly ambitious, partisan or simply vindictive, especially when pursuing cases of political corruption. And the narrative, in some cases, seems plausible, especially for elected prosecutors constantly seeking to prove their mettle to voters. But, perhaps not since the era of McCarthyism – when people from all walks of life were accused, often incorrectly and without evidence, of sympathizing and even colluding with the communist Soviet Union – has the phrase so consistently appeared as part of the common vernacular around politics.

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And this narrative isn’t just the stuff of minor battles being waged in county and state politics. It’s coming from the top. President Donald Trump – also a prime target of Schneiderman’s – and the president’s surrogates have bandied about the phrase as a regular justification for the scrutiny he has faced from law enforcement officials.

“You are witnessing the single greatest WITCH HUNT in American political history – led by some very bad and conflicted people! #MAGA,” Trump wrote in a tweet this summer, amid stories about special counsel Robert Mueller’s investigation into links between the Trump campaign and Russia.

“You are witnessing the single greatest WITCH HUNT in American political history – led by some very bad and conflicted people! #MAGA” – President Donald Trump

Late last month, Mueller brought the first charges resulting from his probe, handing down a 12-count indictment accusing Trump’s former campaign chairman, Paul Manafort, of crimes including money laundering and conspiring against the United States. On the same day, it came to light that George Papadopoulos, a former foreign policy adviser to the campaign, had pleaded guilty to lying to the FBI, admitting in sworn testimony that he had worked to get “dirt” on Hillary Clinton from Kremlin-connected sources.

“Instead they look at phony Trump/Russia ‘collusion,’ which doesn't exist. The Dems are using this terrible (and bad for our country) Witch Hunt for evil politics, but the R’s are now fighting back like never before,” Trump wrote in a seriesoftweets as the first reports of an impending Manafort indictment swirled.

For those politicians who stand accused, whether they are guilty or innocent, the public shaming and a presumption of guilt in the court of public opinion can be deeply painful. After former state Senate Majority Leader Dean Skelos and his son Adam were sentenced in their federal corruption trial, Billy Skelos, Dean’s nephew, attacked a Daily News reporter outside the court building, throwing her phone across the street and violently grabbing her wrist.

State Sen. Rob Ortt, who was indicted by Schneiderman’s office early this year, was accused of setting up a no-show job for his wife while serving as mayor of North Tonawanda, allegedly as part of a scheme to make up for a loss in income when he moved over from his city clerk-treasurer post. Those charges were thrown out by a judge this summer.

Ortt’s indictment was the result of an investigation into longtime Western New York kingmaker, former state Sen. George Maziarz, whom Ortt succeeded after Maziarz’s sudden decision not to run for re-election. While Maziarz remains under indictment, Ortt – who also described the charges against him as a “witch hunt” – said the ordeal had been terrible for his family.

“It’s unfortunate,” he told City & State shortly after the case was thrown out. “It’s unfortunate that my wife and I had to go through that.”

Did ex-U.S. Attorney Preet Bharara have higher ambitions? (Andrew Kist)

Roger Stone, the political operative and self-described “dirty trickster” who helped get Trump elected, is no stranger to investigations and prosecutions. Stone was questioned by a congressional committee at age 19 during the Watergate investigation. In September, he was again in front of a congressional committee, this time being quizzed about his role in and knowledge of possible links between the Trump administration and Russian interference in the 2016 election.

An avowed hater of both Schneiderman and Bharara, Stone doesn’t begrudge them their high profiles or ambition. That comes with the territory.

However, too often prosecutors are willing to illegally leak information to the press or bring charges on legally tenuous ground hoping something sticks, aka, “violating the law in order to prosecute people who have violated the law,” he said.

“Where I do have a problem is when they cut corners to get a conviction,” Stone said.

Here in New York, Schneiderman has garnered the lion’s share of of these accusations of late, but Bharara, too, has been accused of grandstanding on charges and targeting high-ranking politicians in order to make a name for himself. Bharara’s office gained convictions of the two most powerful members of the state Legislature – Skelos and former Assembly Speaker Sheldon Silver – before those convictions were overturned, albeit as the result of a subsequent U.S. Supreme Court ruling. In the eyes of their supporters, prosecutors like Schneiderman and Bharara are aggressive lawmen looking to bring punishment for political crimes in a state that routinely ranks among the most corrupt on both the arbitrary lists of prognosticators and in scientific studies. To their detractors, they are hellbent on advancing their careers and taking down people who have crossed them.

“Not every charged perpetrator is guilty. That’s why we have trials and that’s good.” – former Assemblyman Richard Brodsky

Some Republicans grumble that Schneiderman, a former state senator, has politicized the office. But, as former Assemblyman Richard Brodsky points out, in an environment where prosecutors do not go after public corruption, wrongdoing by electeds and other officials may go unchecked.

“In the end, prosecutors have a very important job when it comes to public corruption, and that’s to be vigilant and accurate,” said Brodsky, who ran for state attorney general in 2010. “Generally speaking, I’m glad we have prosecutors who are following through on public corruption matters. Not every charged perpetrator is guilty. That’s why we have trials and that’s good.”

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In many cases, the record paints a different picture than the story told by critics. Schneiderman and Bharara, both Democrats, have targeted Republicans and Democrats alike. And while some of that can be explained by pointing to battles within the parties – Pigeon, a Democrat, has a history of bad blood with Schneiderman – there are plenty of counter examples that don’t fit the narrative. Bharara took down one of the most powerful Democrats in the state by indicting Silver. Schneiderman’s most recent corruption conviction resulted in Ruben Wills, a former Democratic member of the New York City Council, getting sentenced to prison for two to six years.

Schneiderman declined to be interviewed for this article, though Amy Spitalnick, a spokeswoman for his office, said in an email that most investigations begin with referrals from nonpartisan boards and are carried out in collaboration with a variety of law enforcement agencies.

“Politics stop at the front door,” Spitalnick said. “That’s the charge of this office, and the professional standard every attorney in this office is held to.”

Bharara did not respond to requests for an interview.

Jeanne Zaino, a professor of political science at Iona College and longtime Albany observer, said prosecutors are by nature “political animals,” which makes it easy for people facing scrutiny to downplay an investigation.

“Politics stop at the front door.” – Amy Spitalnick, spokeswoman for Attorney General Eric Schneiderman

“I think it’s very, very common for the attorneys and defense attorneys, and also the people under investigation, to say this is a political witch hunt by somebody who is hellbent on entering politics and wanting to make a name for themselves,” Zaino said.

While recognizing that there are unavoidable political aspects to the role that both elected and appointed prosecutors play, good government advocates and experts say that in many of these cases, defendants who are accused of political corruption are looking to shield their image.

Jennifer Rodgers, the executive director of Columbia Law School’s Center for the Advancement of Public Integrity and a former assistant U.S. attorney, said that in most of the cases she has seen where the defendant is claiming unfair prosecution, it’s more about optics than anything.

“The political witch hunt claim doesn’t hold a lot of water,” Rodgers said. “In many of these cases I think it’s often just something for them to say.”

Paul Manafort, whose arrest drew the President's ire. (Mark Reinstein/Shutterstock)

At the heart of the issues around the politicization of prosecutions, experts say, is that our legal system is designed in a way that makes the mixing of politics and law enforcement unavoidable. Those elected to office in New York – the state attorney general and county district attorneys – are responsible to their constituents and must work the party system to get into office. Those who are appointed, like U.S. attorneys and municipal attorneys, are put in place by elected officials.

Because those same people are charged with enforcing public corruption laws, it creates an innate tension.

“The problem is our system is kind of set up to make this problematic, right?” Rodgers said. “These elected officials are constantly running, they’re constantly campaigning and they’re constantly having to raise money.”

For the most part, the public has trusted prosecutors to carry out these roles faithfully, despite their political associations, Zaino said.

“I do think there is something to the notion that the public sees the prosecutor as this objective, sort of apolitical individual who is out there to stop corrupt politics and corrupt politicians,” she said. “Certainly there’s a lot of truth to that.”

Indeed, many prosecutors have gone on to serve in other roles at the highest levels of government. Thomas Dewey, New York’s 47th governor, served as the Manhattan district attorney before going to Albany, and was the Republican candidate for president in 1944. Jacob Javits was elected four times as the U.S. senator from New York after serving as state attorney general.

And in more recent history, the state attorney general’s office has been a particularly effective stepping stone to higher office. Gov. Andrew Cuomo was attorney general just before being elected governor and former Gov. Eliot Spitzer also took the same path.

“The office has served as a springboard into a political job, if you will,” Zaino said.

Dean Skelos and his son's convictions were vacated – for now. (Armand Dzidzovic)

Since taking office, Schneiderman has faced speculation that he sees a similar path for himself. It is unlikely that he would run against Cuomo in the Democratic primary next year, being better off waiting for a clear shot. But with many prognosticators putting Cuomo in the 2020 race for president, Schneiderman’s opportunity may not be far off.

Spitalnick, Schneiderman’s spokeswoman, said he remains focused on the job he has.

“While the chattering class is always interested in the next horse race, our attorneys are experts at blocking out that noise and focusing exclusively on doing the best job possible for New Yorkers,” she said.

Schneiderman has never publicly voiced a desire to run for governor. But the speculation alone has gone a long way toward opening a window for those seeking to paint him as a lawman driven by his political ambitions.

Bharara, too, has been rumored as a possible candidate, though the office he might seek is less clear. Unlike some prosecutors, both held press conferences announcing political indictments and have had aggressive press offices.

“The prosecutors, they have terrifyingly enormous powers for good and for evil.” – John Kaehny, executive director of Reinvent Albany

Federal Judge Valerie Caproni even reprimanded Bharara for his public comments admonishing the corrupt political environment in Albany and for his conduct during the Silver prosecution.

“The U.S. Attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that Defendant Sheldon Silver has a non-frivolous argument that he fell over the edge,” Caproni wrote in a decision discarding Silver’s legal team’s motion to dismiss the charges because Bharara’s statements were denying him a fair trial.

Brodsky said that while he believes it is essential that prosecutors aggressively pursue corruption cases, the way that information finds its way into the hands of the press before indictments are filed is sometimes troubling.

“I think in many cases law enforcement uses public relations in a way that make me uncomfortable,” he said.

Commonly referred to as the “perp walk,” Silver, Skelos, former state Senate Majority Leader Malcolm Smith and, most recently, Manafort have all had to walk past a sea of cameras as they head to their arraignments. This can be a double-edged sword. While the publicity helps prosecutors appear tough on corruption, the leaks and aggressive public relations work is often offered up as proof of having an ulterior motive.

Prosecutors don’t often help themselves, using their press offices to aggressively pursue media coverage, Zaino said.  She pointed to Schneiderman, Bharara and New Jersey Gov. Chris Christie, who served as a U.S. attorney before being elected governor, as examples of prosecutors who consistently sought publicity for their work.

“I wish they would give the appearance of less political activity when in office,” Zaino said. “But, on the other hand, they also are subject to the voters and so they have to get their name out there.”

So, will these accusations ever cease? It seems unlikely, as there is no way to extricate the politics from the prosecutor. With no better system at hand, there will always be an opportunity for prosecutors to abuse their power. And for their political enemies, there will always be opportunities to make such claims, even without any credible evidence of prosecutorial misconduct.

Rodgers, the Columbia Law School professor, said part of the issue for prosecutors is that sometimes ambitions and good cases overlap.

“It’s very hard to separate,” she said. “You think that a Preet Bharara or an Eric Schneiderman want to bring the best cases they can bring because they want to have the best office they can have and do the best job that they can do. If that also means they then, later down the road, have a better job, I don’t know how you can say it’s one thing and not the other.”

Charges against state Sen. Robert Ortt were tossed by a judge. (Mike Groll)

For people fighting for greater transparency and harsher punishment for corruption in the state, most prosecutors, including Schneiderman, have not done nearly enough to combat what is described as endless misdeeds at every level of government.

John Kaehny, the executive director of the good government group Reinvent Albany, argued that with the amount of corruption in state and local governments, prosecutors have barely scratched the surface with the cases that have been brought forward recently.

“We’re really not seeing a prosecutorial wave of terror in New York,” Kaehny said. “I mean, Preet Bharara was very aggressive, but it’s also true that the facts in the Silver and Skelos cases in particular reveal this environment of embedded and continuing corruption and bribery.”

In fact, some prosecutors have been accused of declining to pursue cases because of political considerations. Last month, a series of news reports showed that Manhattan District Attorney Cyrus Vance Jr. received political donations from lawyers representing Harvey Weinstein and the Trump family months after he decided to end criminal investigations – Weinstein had been accused of sexual misconduct and Ivanka and Donald Trump Jr. were being investigated for misleading prospective condo buyers at one of their Manhattan buildings. Similarly, former Erie County District Attorney Frank Sedita III, now a state Supreme Court justice, was criticized for not pursuing charges against Pigeon despite a series of complaints from the operative’s political foes alleging election law violations.

Critics alleging prosecutorial overreach have been provided with ample fodder in recent months. Schneiderman’s charges against Ortt were dismissed and key evidence in his case against Pigeon was suppressed – although he is working to have it reconsidered – in the same week. Silver and Skelos, who were both indicted in 2015, had their federal corruption convictions vacated in the wake of the U.S. Supreme Court’s McDonnell v. United States decision, which narrowed the definition of the term “official act” when exchanging political action for gifts or favors. Both will be retried.

To some, these developments are proof that the headline-seeking, vindictive prosecutor is a serious problem.

Some point to the Martin Act, a law that makes New York’s attorney general the most powerful state prosecutor in the country, as an example of the wide latitude that prosecutors enjoy, allowing them to use the office as a political cudgel. And getting a conviction is not always the only goal, critics say. Sometimes the news stories and the pictures of an official or operative being arrested are enough to raise the profile of an ambitious prosecutor.

When federal agents showed up to raid Pigeon’s condominium, for example, reporters and photographers from local news outlets were on hand – proof, some from the Pigeon camp said, that the charges were as much about publicly taking down a controversial political operative as they were about upholding the law.

A friend of Pigeon’s, Stone believes the McDonnell decision and other setbacks should throw cold water on some of the more aggressive prosecutors, in New York and elsewhere.

“You’re going to have a course correction, I think, relatively soon,” he said.

But many good government advocates and political observers see these setbacks as technicalities that have little to do with the merits of the cases.

Brodsky pointed specifically to the ruling in the Ortt case.

After Albany County Court Judge Peter Lynch dismissed the charges, Ortt claimed total vindication, having maintained all along that Schneiderman, a Democrat, was targeting him because he is a member of the state Senate’s Republican majority coalition.

“Everything I said from day one, was basically borne out in the judge’s ruling,” Ortt told City & State.

While the judge ruled that there was not enough evidence to proceed, he never said that Schneiderman proceeded in bad faith or brought faulty evidence.

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In his ruling dismissing the charges, Lynch concluded that because Ortt did not sign the campaign finance reports used as evidence, he could not be implicated. “The Court has inspected the grand jury minutes and finds the evidence before the jury was legally insufficient to establish the offenses charged,” he wrote.

Brodsky said he does not believe Schneiderman would have brought the case if he did not feel he had the evidence he needed to get a conviction.

“It’s a fair thing to say that the decisions over the last couple of weeks have been setbacks for the attorney general,” Brodsky said shortly after the Ortt case was dismissed and evidence in the Pigeon case was suppressed. “The second way to look at this is that the wider question of the behaviors involved, whatever the legal technicalities, are worthy of the the attention of the attorney general. And they are.”

But even the most enthusiastic of those hoping for a greater push to bring cases against corrupt officials concede that prosecutors can cause great harm to innocent people.

While Kaehny stressed that the prosecutions of the past few years are not cases of prosecutors “running wild,” he said it’s important that they use discretion when moving forward with a case. He pointed to Rudy Giuliani’s prosecution of dozens of Wall Street executives in the ’80s. Few were convicted and many lost their jobs and suffered serious damage to their reputations.

Spitzer, who earned the nickname the “Sheriff of Wall Street” as state attorney general and famously called himself a “fucking steamroller” while governor, suffered no shortage of witch hunt accusations. While Spitzer was investigating corruption at the New York Racing Association, the “witch hunt” charge was leveled by then-head of the association, Terry Meyocks. And Maurice “Hank” Greenberg, the former chairman and CEO of American International Group Inc., better known as AIG, may move forward with a defamation lawsuit against Spitzer related to the former attorney general’s Wall Street crackdown. Greenberg recently reached a $9 million settlement with Schneiderman over civil accounting fraud charges brought by Spitzer. But an appellate court also ruled that the insurance executive would be allowed to move forward with a portion of his lawsuit that said Spitzer had “acted with actual malice” in a quest to damage Greenberg’s reputation.

While the claims of prosecutorial overreach are increasingly common, those claiming to be victims rarely fight back in court. Critics say this is because fighting those court battles is expensive, and challenging a powerful law enforcement official can be intimidating. But it also remains clear that evidence of political motivations in prosecutions rarely comes to light.

“The prosecutors, they have terrifyingly enormous powers for good and for evil,” Kaehny said. “That’s the nature of power.”

Editor's note: An earlier version of this post included criticism of Attorney General Eric Schneiderman by an anonymous Republican source.