Cross-posted on the New York Law Journal
I have long felt that special prosecutors, while justified in exceptional cases, often lead to public policy error. All prosecutors are invested with enormous power, and so we demand and expect them to use caution and judiciousness. And in theory, all prosecutors face some kind of check on their power, either from voters electing a district attorney or state attorney general, or a president who appoints U.S. attorneys.
But special prosecutors face no such check. Because they have no other job, they are not compelled to consider the importance of their investigation compared to other factors—and they often think they have failed if they do not bring an indictment. At the federal level, the inherent problem with special prosecutors has been recognized, and the federal law which created an Office of Independent Counsel (special counsel appointed to investigate, among others, high level federal officers) has been allowed to lapse.
Alas, that is not the case at the state level. One special prosecutor, in particular, may unintentionally be providing us with more evidence for why such appointments are a bad idea.
Brooklyn attorney Roger Adler was appointed by the Office of Court Administration in 2012 to investigate a 2009 City Council race on Staten Island. The targets of the investigation are Councilwoman Debi Rose and the Working Families Party, which played a substantial role in her election.
This appointment is peculiar for a number of reasons. First, Staten Island District Attorney Daniel Donovan, who recused himself, filed his reasons under seal, which is in and of itself a bad way to start. If the elected district attorney wants to recuse himself, common sense suggests he should tell the public why that is so.
Second, reasonable questions have been raised as to Adler's appropriateness as a prosecutor. When he served as a special prosecutor in a different election law case two decades ago, he was rebuked by a judge for abuse of the grand jury process. The New York Times has reported that he is a "frequent opponent of the Working Families Party." Regardless of whether his past opposition to the party has been legitimate, appearances matter, especially in a politically sensitive case such as this one.
But the third reason is the most important—the investigation itself concerns allegations that should be fully adjudicated by the Campaign Finance Board, which it has been unable to do while Adler's investigation drags on. The board has already examined eight similar cases and, with one exception, found no violations related to the Working Families Party or Data and Field Services, its former for-profit arm. The one exception involved a candidate who was fined for providing an inadequate response to follow-up questions from the board; it did not involve a finding that he or the Working Families Party had substantively violated the city's campaign finance law.
These facts themselves should mean a lot. The New York City Campaign Finance Board is widely considered the nation's gold standard in terms of administering a complex and well-regarded system of public campaign finance. I should know: I served as the board's chair between 2003 and 2008. There are dozens of professionals with deep experience in the city's campaign finance system who work at the agency, and they have audited hundreds upon hundreds of campaign committees. In doing so, they often find violations of the regulations, and candidates are required to comply, sometimes paying substantial fines. Of the 204 audits of council candidates in 2009, fines were levied on 74 candidates.
The New York City public financing system is a model of how to improve our democracy. The Moreland Commission called on Gov. Andrew Cuomo to establish a similar system at the state level. One can hope he succeeds, but whether or not he does, we need the city system to continue as a beacon for a more inclusive, small-donor oriented campaign finance system. Predictable administration of regulations is needed for democracy to function. To launch a criminal investigation of the ordinary campaign activities of one city council race when there is an agency that is fully suited to the job is not only unnecessary but a seriously bad precedent.
I do not know the ins and outs of this case. I only know what I see in the papers. But from my vantage point, the special prosecutor should stand down and allow the Campaign Finance Board to proceed with its audit.
If there are violations to be found, one can have confidence that the Campaign Finance Board will find them and levy the appropriate penalty. And the state should think twice, or even three times, before appointing special prosecutors in the future. It does not enhance our system of justice.