Removing Prosecutors from Boardrooms or from Politics

Debate has intensified concerning the role of criminal liability for organizations such as corporations, under the guise of having “prosecutors in the boardroom.” Issues include how prosecutors interact with boards in ferreting out wrongdoing and targeting employees. Topics extend to whether the terms of deferred prosecution agreements should include particular corporate governance changes.

Heard about less often in this debate is the role of politics in prosecutorial decision-making. True, the relative appeal of “prosecutors in the boardroom” may not depend on whether any given prosecutor’s incentives include aspirations for higher office.  But there are many instances in which it is clear that prosecutorial political ambitions are tied to prosecutorial excesses: Eliot Spitzer is perhaps the poster child for this problem.

As a result, when scholars of corporate governance or corporate criminal liability debate the role of prosecutors in the boardroom, it may be worth paying specific attention to tools that can reduce the role of politics in prosecutorial conduct.  After all, a sense of proportion can be promoted by neutralizing the political incentives prosecutors sometimes have.

States with elected attorneys general—the vast majority today, including Spitzer’s New York—could follow the lead of the few with laws discouraging prosecutors from engaging in political activity. The chief alternatives are barring an attorney general from running for higher office while serving as the state’s chief prosecutor (called “resign-to-run” laws) or requiring an attorney general to wait two to four years after leaving that office to run for a higher one (a “cooling-off period” approach).

Opponents of such restrictions object that these impair the officials’ rights of free speech and impinge on democratic traditions allowing the electorate to choose from among a broad field of candidates. But resign-to-run laws meet those objections, putting the prosecutor to a simple choice, and even the cooling-off period is a modest eligibility limitation, not adding qualifications to run for office. The restrictions are common in codes of judicial ethics which have been upheld against constitutional challenge; they are modest compared to those contained in more sweeping federal legislation such as the Hatch Act, which prohibits federal and state employees from running for elected office.

Are these points valid? Should corporate/criminal law scholars look at the role of politics in prosecutions; is that role a significant factor in the risk of prosecutorial excess; are such laws helpful to address that factor; are the laws legitimate?

 

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