Special Prosecutor Renewal Not Needed

Article excerpt

It could have been a useful lesson in American justice the other day when the 6th U.S. Circuit Court of Appeals in Cincinnati scolded the Justice Department. The department's offense was to suppress evidence in the proceedings against John Demjanjuk leading to his extradition to Israel, several years ago, for trial as "Ivan the Terrible," a legendarily cruel death-camp guard during World War II.

But Demjanjuk, now cleared by Israeli courts, seems not to be "Ivan the Terrible" after all. And officials in the Justice Department apparently had reason to suspect that he was not.

The psychology is understandable. Demjanjuk is not an appealing character. If he was not the said "Ivan the Terrible," he may have misrepresented his past and may have gained U.S. citizenship fraudulently. But no such suspicions justify prosecutorial misrepresentation, and the Cincinnati court did not shrink from that charge in describing his pursuit by the Justice Department.

It is hard to think of a more despicable or dangerous practice than the abuse of prosecutorial discretion to trifle with the reputation and liberties of citizens, whatever they are suspected of doing. But the ethical climate of many district attorneys' shops is that of a cat-and-mouse game, in which no tricks to trap the mice are frowned upon. In a roundup of recent court rebukes for federal prosecutors, The Washington Post collected some choice examples of judicial reprimand - "disgrace," "numerous misrepresentations," "win at any cost" attitudes, "numerous instances of invidiously egregious conduct," and, of course, "lack of supervision and control exercised by (superiors)."

Is it not strange, then, that just as the 6th Circuit was roasting the Justice Department in the Demjanjuk case, Congress was reinstating the lapsed "special prosecutor" law? Under this section of the 1978 Ethics in Government Act, prosecutorial discretion attains a scope and sweep never before countenanced in American law. And in matters often supercharged with politics, too.

This law was an unfortunate product of Congress' misguided response to the Watergate scandal. Congress assumed that Watergate showed that elected executive officials could not be trusted, as they had been for two centuries, to police themselves by appointing special investigators on appropriate occasions. …