Who benefits by serial allegations of corruption? The US Attorney’s Office

If federal prosecutors hoped the trial of John O’Brien might have focused our collective attention on the sins of political patronage, they seem to have failed.  It’s the power of the US Attorney’s office that increasingly draws scrutiny.  And not for the first time.

In January 2013, Professor Cunningham said it might be time to investigate US Attorney Carmen Ortiz’ office.   Yesterday, WBZ’s Jon Keller wondered: “has her power left her blind to the consequences of its abuse?”

During the course of the O’Brien trial, Massachusetts House Speaker Robert DeLeo emerged as the lead player in what prosecutors have called a criminal conspiracy involving patronage at the Probation Department.

That the Speaker and his aides remain unindicted in said conspiracy seems to bother the prosecutors not at all.  John O’Brien is accused of bribing DeLeo.  And yet it is only O’Brien and his deputies who sit in trial.

The man who took the “bribe” has not been charged.

Got that?

What we have here is another clash of political cultures and a further attempt to criminalize politics.

The Speaker of the House is an easy target because, say it with me now, we’ve had three felony convictions in a row!  We must be the very model of political corruption.

And yet, when you peel back the layers, you find something that is unsettling: the relentless pursuit of political figures in the Commonwealth that borders on prosecutorial zealousness if not outright abuse.

The latest outrage is trying Bob DeLeo without formally charging him with a crime and thus avoiding the need to offer actual proof.  This tactic raises a question of how we define our political culture.

Is Massachusetts really a hotbed of political corruption or have sustained allegations of corruption helped advance the political aspirations of one group of politicians over another?  And make no mistake, the US Attorney’s office is one group that has benefited greatly by the mantra of corruption.

Recall US Attorney Bill Weld’s relentless pursuit of Boston Mayor Kevin White and Senate President William Bulger.  The same Bill Weld who, as Governor, happily acclimated himself to the very political climate he had previously considered corrupt.

And as to the three felony convictions of Speakers?  Consider my colleague’s pushback on this narrative:

. . . the first two were largely coerced into plea deals. Charles Flaherty was hounded for several years and gave up to avoid the risk of prison time and the continued financial drain of defending himself against a foe with nearly unlimited resources. Thomas Finneran faced a similar situation. As Attorney Harvey Silverglate has argued, Finneran had a very defensible case against the charges facing him, but when the government offered a plea deal with no prison time versus the recommendation of prison should Finneran be convicted at trial, the speaker was all but compelled to take the deal. The Finneran case and many others are detailed in Silverglate’s book Three Felonies a Day: How the Feds Target the Innocent.

Speaker Sal DiMasi’s treatment as a federal prisoner has been a travesty of serious proportions.  Silvergate called it “criminal” and the US Attorney’s office is again implicated.

But perhaps you hold a certain disdain of politicians and shed no tears for the House Speakers who have been subjected to power of the US Attorney’s office.  Then you might just reflect on the death of Aaron Swartz.

To be sure, the case against John O’Brien has revealed something ugly about Beacon Hill politics: far too many entrenched legislators view the Commonwealth’s agencies as employment troughs for the sometimes unqualified.  Thomas Farragher in today’s Globe sums it up perfectly: “This was the crack cocaine of patronage.”

Patronage at this level is as much a disservice to the concept of the public good as writ large efforts at privatization.

But the O’Brien trial strikes me as just another example of the politics by other means that seeks criminal convictions for those who may be guilty of political or ethical lapses.  It reminds me of the wasted state prosecution of Tim Cahill in 2012.

It is generally best to let politics tame politics.  Movements, opposition parties, Governors, grass-roots activism, elections can move a political culture.  But bringing in the unlimited resources of federal prosecutors who have their own agenda and can use the threat of prison to demand compliance is a perversion of normal politics.

And it is undeniable that it benefits the US Attorney’s office that we believe their contention that our political culture is unforgivably corrupt.  Acquiescence to that belief allows their continued pursuit of political leaders.

The great Harold Lasswell defined politics as “who gets what, when, and how.”  What do federal prosecutors get when they help to further a belief that is widely held due in no small measure to the zealousness, and potential abuse, of their office?  If Massachusetts is corrupt to its core, then federal prosecutors must continue to march untrammeled through it in order to make it right.  That requires additional power and additional resources.

After watching prosecutors over the past two weeks, I join my colleague is suggesting that the time is now well past for us to commence an investigation into the US Attorneys office.

About Peter Ubertaccio

Peter Ubertaccio is the Director of Joseph Martin Institute for Law & Society at Stonehill College in Easton and Associate Professor and Chair of the Department of Political Science & International Studies. His work focuses on political parties, marketing and institutions. He received his Ph.D. in Politics from Brandeis University in Waltham, MA. Professor Ubertaccio and his family live on Cape Cod where he is on the Board of Directors of the OpenCape Corporation and the Sandwich Economic Initiative Corporation.
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15 Responses to Who benefits by serial allegations of corruption? The US Attorney’s Office

  1. Ed Lyons says:

    Professor Ubertaccio,

    To me, the most interesting part of this debate is that all of the Democrats who defend or minimize this scandal are forced to import the following unlikely premise into their argument: government jobs really aren’t meaningful.

    Let’s do a thought experiment: instead of the probation department, lets say these jobs were for front-line DCF case workers. Food safety inspectors. How about… something a bit closer to home for you: government inspectors at the Pilgrim Nuclear Generating Station. That sounds right. So… rather than having a drug-addicted criminal son of a state senator get a probation job he isn’t qualified for, lets have him get a job overseeing safety of a nuclear power plant that could have an accident and radiate much of Cape Cod. (Yes, I am aware most of the oversight there is federal.)

    And if, in that case, he got that job to help Speaker DeLeo shore up support for his speakership, and then, that guy, along with other probation employees, gave large campaign contributions to Democrats in return, as the MassGOP just discovered in OCPF reports, would your views be the same? You might even say, rhetorically, that it was criminal to trade jobs for favors when the risk to public safety was so high. And if there was a meltdown? I am quite sure the US Attorney would not be chastised for zeal.

    Back to probation: Massachusetts lags the country in criminal justice reform. We are locking up far too many people, for far too long, for far too many things, for far too much money. (I imagine you and I agree there.) Once the Democrats of Massachusetts decide to catch up with the Republicans in Texas on this area of reform, which I hear is being discussed, it will be even more important to have an excellent probation department to manage the flow of people who I hope will be released. A big increase in probation cases is always risky, and I worry what will happen when all the patronage appointees have to deal with all these former criminals, who, mismanaged, might harm innocent people. (Let’s hope none are released in Cape Cod.) If they are, and bad things happen, well… what can you expect? It’s the government, after all.

    • Jerold Duquette says:

      Ed,

      Don’t you think your premise is too broad? First, I don’t see the necessary connection between qualifications, however determined, and “meaningfulness.” Second, I don’t see how a patronage situation in a single department is necessarily a microcosm of both hiring practice or mission meaningfulness in every other department of government. I think you are on more solid ground arguing that patronage can reduce compitence, and maybe even that it did so here (I don’t know enough to say).

      P.S. I’m clearly going to have to do some serious homework on criminal justice reform in Texas. I must be a victim of the liberal media on this issue because I am having trouble imagining that the Bay State could learn anything useful from Texas about criminal justice. ;-)

      • Jeff Semon says:

        Even if you narrow the scope to just probation, the bottom line is those who were put in charge of overseeing criminals released into our communities were woefully under qualified.

        That IS a major problem.

        • Jerold Duquette says:

          Has there been any evidence of incompetence presented at the trial? Seems like that question has been beside the point for the prosecutors.

      • Ed Lyons says:

        Professor Duquette,

        More to say later, but I understand your hesitation in that we could learn anything on Texas on criminal justice. (I am confident you are thinking about the death penalty, etc.)

        Surprisingly, there is a genuine reform movement to incarcerate fewer people and put more people into a community-based setting. There is a wonderful organization there called, “Right on Crime” that travels to other states (red and blue) to get them to enact bipartisan reforms. They are a conservative outfit trying to give cover to the law-and-order crowd to embrace reform without looking ‘weak’ on crime.

        p.s. And I am confident that your media diet probably has somewhat of a liberal bias. ;-)

        • Jim Walsh says:

          Mine too, Ed. I will also take a look at this and appreciate the heads up. Nothing better than to have a prejudice disconfirmed. Nothing more depressing than having one confirmed.

  2. Matt O'Brien says:

    I’m firmly on the side that believes:
    “… Massachusetts is corrupt to its core, then federal prosecutors must continue to march untrammeled through it in order to make it right. That requires additional power and additional resources.”

    I do find it troubling that Speaker Deleo was not the focus of this trial. To my mind it is the equal of raiding a brothel, arresting everyone there, prosecuting the call girls and the bartender, but letting the madame and the “johns” go free. To me it smacks of cowardice on the part of the US Attorneys office.

    I will agree that US Attorney Carmen Ortiz should be investigated for the prosecution leading up to the suicide of Aaron Swartz. I also believe that we should have a discussion about the threat prosecutorial discretion poses to justice in our nation. Here is a place that I would start.

    columbialawreview.org/ham-sandwich-nation_reynolds/

  3. Tim says:

    A couple of comments:

    1. The small number of states Massachusetts included where the state capital is also the main population, economic, and media center of the states actually have less political corruption at the state level than those states that are the opposite(NY, IL, TX, FL).

    www.npr.org/blogs/itsallpolitics/2012/05/24/153596809/researchers-find-link-between-isolated-state-capitals-corruption

    2. The state court system below the SJC is still very much tied to the residual vestiges of county government. I think if you actually look at the details of the probation case you will see that.

    3. For those on the left of the Democratic Party(i.e. Berwick supporters)who don’t like Speaker DeLeo for his opposition to single payer healthcare this is a pretty bad outcome. Many on the left quietly hoped DeLeo would be wounded over the course of this trial however, in many ways DeLeo is now being seen as the victim of the US Attorney’s Office.

  4. Jeff Semon says:

    “What do federal prosecutors get when they help to further a belief that is widely held due in no small measure to the zealousness, and potential abuse, of their office?”

    I’m not sure what federal prosecutors get, but citizens get a government that thinks twice about engaging in this unethical/criminal behavior. Here in the Commonwealth I guess they think about it 4 or 5 times.

  5. Jim Walsh says:

    Each element of our political system has its own form of corruption as does the justifiably vaunted Fourth Estate. It was the genius of the Founders to play them off against one another in the hopes that the distribution of distinct powers would check and balance our political life. Of course, that sounds like American pablum, the sort of thing I learned in my civics class fifty five years ago, and that we disdain in today’s more “realist” world, one without high school civics.

    Yet…the last time I heard that description expressed with deep admiration and sincerity I was in a graduate seminar on Politics and Philosophy, taught by an émigré German Jewish woman who had been engaged deeply as a scholar and an actor in Germany until forced to flee in 1933, who was active in France until 1941 when she was forced to flee, and then in the United States until her death in 1975. She didn’t have to flee from the United States. She said once in class that Americans simply did not understand their good fortune, living in a system created by practical political geniuses two hundred years before.

    So we have an imperfect US Attorney’s office squaring off with an imperfect Legislature and an imperfect executive branch bureaucracy, each actor having the power to do good and to be unjust.

    Has the US Attorney’s office overreached in going after O’Brian and was DeLeo unfairly brought into the picture? Probably not. O’Brian and DeLeo were just acting within “the system,” they say. Yes, well who is it that should enquire into the fairness, honesty, legality and efficiency of that system if not someone who stands outside it, as the Founders intended? Who checks the US Attorney? The jury does. Who checks the jury? The appellate courts. And who checks them? The Supreme Court. And them? The President and the Senate. And them? The electorate…with the help of the free press, protected by the First Amendment.

    When you write about prosecutorial zealousness bordering on abuse one would have to say unequivocally…perhaps. But who is it then who would expose those who undermine the civil service system and the expectation that the ordinary citizen should be judged on his or her merits when seeking employment in government? Or, do we throw out the window the concept of a merit-based civil service and just go back to Andrew Jackson’s notion that “to the victor belongs the spoils?”

    You mention Aaron Schwartz, a clearly tragic case of the worst kind, but I’m not sure he belongs in this conversation at all because the topic is “political corruption” of a different sort and what a citizen should expect from his or her elected leaders. A better example might have been former Labor Secretary Ray Donovan who, after he and all his co-defendants were found not guilty because of a very flawed case asked, “Which office do I go to to get my reputation back?” or the Duke lacrosse case where the prosecutor was disbarred.

    Similarly, Mr. DiMasi’s treatment as a prisoner is really quite separate from whether he should have been a prisoner in the first place. He belongs in prison. His was an absolute betrayal as well as a crime. I wonder if his treatment is different in quality from the way other prisoners are treated. I have my doubts. He just happens to have a superb advocate in Harvey Silvergate.

    Finally, is there any more flawed group of individuals than those that make up The Press? Nope. They’re about the same as the rest of them and, at different times, are allies of the good guys and the bad. But they are absolutely essential to our political way of life. On a daily basis they misrepresent events great and small and one can only hope that, on any given day, they get it more right than wrong. At the moment Maria Macchetti’s reporting in the Globe on the Todashev case approaches the level of the work of Woodward and Bernstein forty years ago. Will her revelation of FBI corruption have the same impact as Watergate? I’m not so sure that it won’t. The Nixon White House was covering up a burglary. The FBI in the Todashev may be covering up what amounts to murder as well as malfeasance. Where is Judge Sirica when we need him?

    So back to the beginning. Hannah Arendt believed that our imperfect political system was created by imperfect political geniuses in the last decades of the 18th century and we have been working out their notion of checks and balances ever since. You note, “The latest outrage is trying Bob DeLeo without formally charging him with a crime and thus avoiding the need to offer actual proof.” Let’s see what the jury says before we conclude that it is an “outrage.” They may decide that a civil service system based on merit is just a fiction that no one should take seriously. And then, you’d be right. Or, they may decide that the State has an obligation to treat all job candidates fairly and impartially based on merit. I would find that refreshing. Mr. DeLeo might find it frightening and justifiably so.

    PS…I am in the middle of reading Elizabeth Warren’s new book and, so far, am finding it refreshing testimony on how the system should work.

  6. John C. Berg says:

    Two (or more) contradictory observations here:

    Peter doesn’t even get to what I consider the most egregious abuse of the US Attorney’s office (although it was Mike Sullivan, not Carmen Ortiz): Chuck Turner. There was absolutely no suspicion that Turner had ever been corrupt until the Feds set up a sting operation and lured him into accepting a $1,000 gift; and then they insisted on, and got, prison time. There was absolutely no ethically acceptable reason for them to have attempted this.

    Second observation; I don’t think this constitutes racketeering, but there was testimony that unqualified people got jobs and got promotions because of political favoritism. I keep thinking of the old MDC. No question, people got summer jobs as lifeguards as political favors — but every one of those lifeguards was actually a Red Crosss-certified lifeguard. There’s a big, unfortunate jump from political backing to get qualified people hired to political backing to get unqualified people hired.

    Third observation: Peter is absolutely right about Flaherty and Finneran (who hadn’t done anything wrong, except to deny that he had done what he had done, which wasn’t wrong or even improper), and while DiMasi may have been guilty his treatment since is indeed disgraceful. The large point: it is fundamentally wrong for the federal government to be intervening in state politics in this way. We have a state AG and courts, after all — it should be up to Massachusetts to decide what is unacceptable in Massachusetts.

    OK, enough said!

    • Jim Walsh says:

      I am a dyed in the wool Dem and have been around politics my whole life. I’ve held minor elective office and am active in the Party. I am sick of corruption and while I’m definitely no OC on it, I do think that State Reps going around demanding cash for themselves is wrong and that is especially true of Mr. DiMasi. When a leader of the progressive wing of the Party betrays us all it seems particularly egregious. It does something else too. It makes vulnerable someone like John Tierney who, according to the US Attorney, the IRS and the Joint Committee on Ethics, is guilty of NO wrong doing. But because of a couple of crummy brothers-in-law and a wife who made errors (but none that were terribly self-serving) the press and the opposition can fling accusations and insinuations and the atmosphere created by DiMasi and O’Brian could lead to a loss for the wing of the Party that I hold dear.

      And what in heaven’s name is wrong with a good, honest civil service system. Are we incapable of such a thing? Is there something unamerican with a system based on merit rather than political connections?

      On one of your last points…if Maura Healey is elected AG I might have some faith in that office. If not then just another one of the good old boys will be putting his finger up to check the political winds before impartially serving ALL the people of Massachusetts.

    • Jim Walsh says:

      I am a dyed in the wool Dem and have been around politics my whole life. I’ve held minor elective office and am active in the Party. I am sick of corruption and self-dealing and that is especially true of Mr. DiMasi’s case. When a leader of the progressive wing of the Party betrays us it seems particularly egregious. It does something else too. It makes vulnerable someone like John Tierney who, according to the US Attorney, the IRS and the Joint Committee on Ethics, is guilty of NO wrong doing. But he IS guilty of tirelessly supporting a good, solid progressive agenda in Washington DC.

      And what in heaven’s name is wrong with a good, honest civil service system. Are we incapable of such a thing? Is there something unamerican with a system based on merit rather than political connections?

      I was particularly struck by this statement, “it should be up to Massachusetts to decide what is unacceptable in Massachusetts” and that we should rely on “our” AG to do the right thing in these matters. Surely you jest. As a general principle, that would be the position of every retrograde Southern politician in my lifetime, the Eastlands and George Wallaces who did so much to elevate American political life. And, as far as relying on “our” AG…if Maura Healey is elected I might have some faith in the independence of that office but if not, not.

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