The Political Prosecution of Linda Tripp
"Upon this, one has to remark that men ought either to be well treated or crushed, because they can avenge themselves of lighter injuries, of more serious ones they cannot; therefore the injury that is to be done to a man ought to be of such a kind that one does not stand in fear of revenge." - Niccolo Machiavelli.
It has always seemed to me that the ethically easier position to occupy as an attorney would be as a prosecutor rather than as a defense attorney. In some cases, a defense attorney pleads on behalf of a defendant he believes to be innocent. However, since everyone is entitled to a vigorous defense, a defense attorney can easily find himself obliged to argue for a proposition he does not subscribe to - the innocence of his client.
By contrast, a prosecuting attorney is afforded far more discretion. If he believes that a person is innocent, that it would be in the best interest of the state not to prosecute, or simply that resources could be more effectively allocated elsewhere, he may decline prosecution. Even though there may be public pressure to prosecute, a prosecuting attorney can decline to proceed without violating any ethical tenets.
Indeed, the necessity of a district attorney to weigh finite resources for prosecution against all potential actions affords an important check on frivolous prosecutions and abuse of power. It also forces district attorneys to establish regular guidelines for deciding when to prosecute.
Way back when Democrats believe they would always control Congress and Liberals believed investigations by special counsels would only be applied to their political enemies, Conservatives warned about the lack of institutional safeguards associated with special counsels. Chartered to investigate a particular person or event, such counsels are never disciplined by the process of balancing the resources devoted to a prosecution against the gravity of the offense.
Without loosing ourselves in the infinitely rehashed question as to whether President Clinton's mendacity in front of a judge in a federal civil rights case or in front of a federal grand jury were serious enough to warrant impeachment, it is clear that Special Counsel Kenneth Starr never had to balance the question of resources against the necessity of prosecution. By contrast, Maryland's state prosecutor, Democrat Stephen Montanarrelli, has an ethical obligation to determine if the public benefit from the prosecution of Linda Tripp outweighs the benefits from spending those same resources on other prosecutions. Given the necessity of balancing the resources against the seriousness of the crime, what possible advantage is there to the prosecution of Tripp?
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