Transparency and the rule of law under attack

Fungi are inherently happy

due to their ignorance 

Corruption and sleaze in government require sufficient opacity to stay under the press and public’s radar and plausible deniability for the bad guys when some of the badness does pop up and become public. This is the case everywhere. In the US, there are signs that the desire for secrecy is bipartisan and getting more aggressive. The New York Times discusses a recent example of abuses in law enforcement that government wants to be kept in secrecy. The NYT writes in an article, They Publicized Prosecutors’ Misconduct. The Blowback Was Swift.:

Grievances against 21 Queens prosecutors shared publicly online prompted a rebuke from the city, and has led to a lawsuit that raises questions about accountability in the justice system.

When three men convicted of murders they did not commit were exonerated in March, a group of law professors saw an opportunity to shed light on the kind of prosecutorial misconduct that had put the men in prison for decades.

Prosecutors working the men’s case had failed to turn over important evidence and had made false statements at trial, a judge found — textbook misconduct. And they were far from alone in the Queens district attorney’s office.

Normally, accusations of misconduct are handled out of public view by a little-known state committee. But the professors wanted to make some noise. They filed grievances against 21 Queens prosecutors, and instead of keeping their complaints quiet, they built a website and published everything online — and made plans to expand the effort to other boroughs.

The blowback from New York City was swift. A city lawyer called the grievances an abuse of the system and said that they had “concerned” local prosecutors. He accused the professors of politicizing the process and violating the law in a letter sent directly to the grievance committee responsible for disciplining lawyers.

The city’s pushback against the professors included the threat of further action if they continued to file grievances, according to a lawsuit filed publicly on behalf of the professors and their partner organization, Civil Rights Corps, in federal court in Manhattan this month.

Now, according to the professors’ lawsuit, New York City is arguing that the process of seeking consequences for prosecutorial misconduct should effectively be shielded from public view.

Ellen Yaroshefsky, a distinguished professor in legal ethics at Hofstra University who submitted an affidavit about prosecutorial misconduct in Queens in an unrelated case, said that the actions of the city’s lawyer, officially known as the corporation counsel, were “shocking.”

“These plaintiffs have ruffled the feathers of very powerful actors,” said Ms. Yaroshefsky, who was not one of the professors who filed the grievances.

Asked about the lawsuit, a spokesman for the city’s law department, Nick Paolucci, said that while prosecutors who committed misconduct should be held accountable, the professors’ attempted use of the grievance process was contrary to the law.

“Their frustration with their lack of progress to increase accountability through advocacy and the legislative process does not entitle them to misuse the attorney grievance process or bring a frivolous lawsuit to bring attention to their goals,” he said.  

The city has argued that the professors’ actions violated a New York law that requires that complaints related to lawyers’ conduct be kept private unless judicial authorities decide otherwise. The professors are asking that a judge declare that law to be unconstitutional, a violation of their First Amendment rights.

Vindicating the law is optional

Think about that for a minute. NYC says the whistleblowers broke the law and threatened to take “further action” if they didn't stop. Back in the days when the rule of law used to mean something after it was broken, assuming those days ever actually existed, it was supposed to be vindicated by prosecution, conviction and punishment. Nowadays, vindicating it is optional at least for white collar criminals. If the whistle blowers broke the law they would be prosecuted if the law had real teeth.

Obviously, if the prosecutors that got the whistle blown on them broke the law, they should also be prosecuted. The whistleblowers arguably did a public service by accusing corrupt prosecutors of hideous criminal acts. 

Keep the public in the dark and feed it BS

Equally concerning is New York City arguing to keep prosecutorial misconduct proceedings shielded from public view. Why? One can reasonably assume that if misconduct proceedings are done in secrecy, the bad prosecutors will not face much or any punishment. In effect, that would condone the sleaze of prosecutors screwing defendants by keeping exculpatory evidence hidden from them. 

Questions:

1. Why would or should a corrupt attorney or prosecutor who breaks laws, e.g., to put innocent people in jail, be afforded a secret prosecution, while other criminals are tried in public?

2. Is the argument that vindicating the rule of law is optional for white collar crooks overblown, e.g., Merrick Garland refuses to prosecute the ex-president for the multiple obstruction of justice felonies that he clearly committed[1], and NYC wants to keep prosecutor misconduct proceedings in secret? 

Footnote: 

1. There is no question about obstruction of justice. The ex-president did it multiple times. Mueller's investigation made that clear and undeniable. Hundreds of former federal prosecutors signed a public letter stating that they would have prosecuted, but for the lunacy of a quasi-rule that says a sitting president cannot be prosecuted. Nonetheless, US Attorney General Garland has opted to not prosecute the scumbag because he is rich, a White politician and/or powerful. Any one of those three “qualifications” would be sufficient for a white collar crook to face optional exposure to the rule of law. From the rest of us who commit the same crimes, the rule of law would be vindicated. Us regular people have no sleaze shield.

Quinta Jurecic at Lawfair analyzed the matter of obstruction. She wrote this in April of 2019 shortly after a still-redacted version of the Mueller Report was made public. To thus day and still in open contempt of transparency in the public interest, the full Mueller report remains hidden from the public and AG Garland is still just fine with it.

The Mueller report describes numerous instances in which President Trump may have obstructed justice. A few days ago, I threw together a quick spreadsheet on Twitter to assess how Special Counsel Robert Mueller seemed to assess the evidence. Unexpectedly, that spreadsheet got a fair amount of attention—so I thought I would delve back into the evidence to provide a revised visualization with a little more nuance, which will hopefully be helpful to people attempting to parse a legally and factually dense document.

The key question is how Robert Mueller and his team assessed the three elements “common to most of the relevant statutes” relating to obstruction of justice: an obstructive act, a nexus between the act and an official proceeding, and corrupt intent.

Her analysis found solid evidence of all three elements of obstruction at least four times. That amounts to four felonies.