Keep politics out of federal prosecutions

The U.S. attorney’s decision to prosecute state Rep. Sue Schmitz made sense, but the trial’s progress is a reminder that political motivations have no legitimate place in the decision of what defendants should be prosecuted.

The dispute over the politics involved in U.S. attorney appointments had its genesis in the Dec. 6, 2006, dismissal of seven U.S. attorneys by the U.S. Department of Justice, then headed by Attorney General Alberto Gonzales. The controversy prompted the resignation of nine justice officials, including Mr. Gonzales.

U.S. Attorney Alice Martin, who was appointed by President Bush in 2001, has figured prominently in the controversy because of the prosecution of former Gov. Don Siegelman, a Democrat.

Whether or not Ms. Martin’s decision to prosecute was influenced by political motivation, the Schmitz case is a showcase on the imbalance between the U.S. government and defense attorneys.

The imbalance begins before the indictment, when the government has the FBI at its disposal and the defendant may not even know he or she is a subject of the investigation.

During grand jury proceedings, prosecutors subpoenaed dozens of witnesses to testify against Rep. Schmitz. Rep. Schmitz’s lawyers had no subpoena power until trial, so their knowledge of witnesses’ likely testimony was limited. It is an oddity of American law that in a low-stakes civil case, both sides have an equal opportunity to conduct pre-trial discovery. In a criminal case, however, a prosecutor who uses the sealed grand jury process has the exclusive ability to discover facts in advance of trial.

The prosecution’s main witness against Rep. Schmitz was fired two-year Chancellor Roy Johnson. His future is in the hands of prosecutors. He pleaded guilty to 15 felony counts and signed an agreement to cooperate with the government in other prosecutions. His sentencing date was delayed until after Rep. Schmitz’s trial, and the prosecution agreed to recommend a reduced sentence in exchange for Mr. Johnson’s cooperation. The agreement also provided immunity to Mr. Johnson’s family members.

At Rep. Schmitz’s trial, the most dramatic example of the government’s power came in the testimony of House Speaker Seth Hammett. He was strikingly deferential to the prosecutors, and for good reason. They have the power to pursue an indictment against him, either for his role in getting Rep. Schmitz a job or for perjury in her trial. Any loyalty he had to Rep. Schmitz was long gone by the time he testified.

With the deck stacked in favor of the U.S. government, it is critical that federal prosecutors choose their cases without being influenced by political motivation. When charges of political bias are made, as they have been against U.S. Attorney Martin, we must take them seriously.