One reason that prosecutors are often such theatrical, grandiose types (Preet Bharara, Rudy Giuliani, Chris Christie) may be that the role naturally fits a particular quixotic self-image, the state’s attorney against the world. In the press clippings the prosecutor is not just a distributor of retributive justice, the official sent to ensure a mugger goes to jail, but the means by which the state takes on broader conspiracies and corruptions: The mafia, Islamic terrorists, rings of insider traders embedded within banks, hedge funds and corporations. The vanity of the state’s attorney is often that he is not just delivering individual justice but taking down corrupt and criminal institutions — that he is practicing modernization politics by other means.
Since 9/11 many liberals have worried about the powers that prosecutors were acquiring to monitor email and phone traffic, to trace the flows of money. The past couple of weeks have served as a reminder of how much a powerful state, in the hands of a progressive prosecutor, can do. First, Marilyn Mosby in Baltimore announced manslaughter and murder charges against the police officers involved in the death of Freddie Gray. Then in the space of the last few days Loretta Lynch first announced that four banks had agreed to pay $2.5 billion in fines for rigging the foreign exchange markets, and then revealed indictments against fourteen of the planet’s most senior soccer officials, describing a pattern of corruption and bribery that has been endemic within FIFA for decades.
The image that cohered in these two African-American women was that of the prosecutor as social justice warrior, with smoke-filled rooms evaporating before her. In the same press conference Lynch denounced the old boys club that had corrupted the World Cup and made the case for renewing a key provision of the Patriot Act. One interesting question, should a Democrat win election in 2016, is whether liberals will be more comfortable with an expansive state if that state is also an activist, progressive one.
Lynch and Mosby made their activism easy to see. In these three cases the prosecutors were more or less explicit that they were not just interested in jailing a few criminals but in changing a corrupt culture — of the police in Baltimore, the banks, institutional soccer. If politics were working perfectly, we wouldn’t need their intervention; criminal indictments wouldn’t be required to fix these institutions. But because they are, there is a tension at the heart of all these cases. What the prosecutor can do is to indict criminals for criminal behavior. What we want the prosecutor to do is not just put a few villains on parade but to make Wall Street more responsible, the police less brutal, soccer television rights more transparently marketed. Sometimes one leads naturally to the other. Not always.