Tipping the Scales? Testing for Political Influence on Public Corruption Prosecutions

The need to cultivate political support for nominations to higher office creates a conflict of interest for U.S. attorneys and the prosecutors they supervise in cases involving the two major parties. We find evidence of partisan differences in the timing of public corruption case filings around elections. Relative to the president’s co-partisans, opposition party defendants are more likely to be charged immediately before an election than afterward. We find a corresponding decrease in case duration before elections for opposition partisans, suggesting prosecutors are moving more quickly to file cases. These timing differences are associated with greater promotion rates to the federal bench (for U.S. attorneys) and to U.S. attorney (for assistant U.S. attorneys). However, prosecutors do not appear to bring weaker cases against opposition defendants before elections; we find no measurable difference in conviction rates and actually show that co-partisans received less favorable treatment in plea bargains and sentencing until recently. We gratefully acknowledge support from the Arts Undergraduate Research Awards at the University of British Columbia, the Canadian Institute for Advanced Research, the Nelson A. Rockefeller Center at Dartmouth College, and the Robert Wood Johnson Foundation Scholars in Health Policy Research Program at the University of Michigan. We thank Mauricio Drelichman, Linda Fowler, Sanford Gordon, Don Green, Scott Hendrickson, Michael Herron, Eitan Hersh, Dave Hopkins, Dean Lacy, Jacob Montgomery, Francesco Trebbi, and seminar/conference audiences at the Canadian Institute for Advanced Research, Dartmouth College, MIT, the Midwest Political Science Association, the American Political Science Association, and the Canadian Economics Association for helpful comments. Michael Chi, Ester Cross, Hugh Danilack, Brandon DeBot, Eli Derrow, Sasha Dudding, Jacquelyn Godin, Aaron Goodman, Nora Isack, Jessica Longoria, Midas Panikkar, Katie Randolph, Daniel Shack, Urvi Shah, Sabrina Speianu, EvelynWeinstein, and DavidWylie provided excellent research assistance. Finally, we are grateful to Sanford Gordon for generously sharing his data. The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. —Justice Sutherland, Berger v. United States (1935) A scandal broke out in 2006 when it was revealed that the Bush administration had sought to replace nine U.S. attorneys. Some of these officials, who serve as the chief federal prosecutors in each judicial district, had investigated Republicans for corruption or declined to bring corruption or voter fraud cases against Democrats (Johnston 2007), leading to allegations that the requests were politically motivated. An internal Department of Justice investigation concurred, finding that “political partisan considerations were an important factor in the removal of several of the U.S. attorneys” (U.S. Department of Justice 2008). Do political pressures like these influence prosecutors or other unelected officials? Despite rules and procedures intended to ensure that they execute their powers faithfully, government officials within the bureaucracy often have substantial discretion to advance their own interests or biases (e.g., Epstein and O’Halloran 1994; Gailmard 2009; Gailmard and Patty 2012; Miller 2005). The potential abuse of delegated authority is an especially serious concern for prosecutors, who have wide latitude in choosing which cases to pursue, which charges to file, when to file them, and how to resolve ongoing cases. In making these choices, they exercise great influence over case selection and outcomes (Kessler and Piehl 1998; Rehavi and Starr N.d.; Starr and Rehavi 2013). To date, however, little is known about how political incentives influence U.S. attorneys or other prosecutors. The influence of political factors on judges has begun to receive more scrutiny (Berdejo and Chen N.d.; Besley and Payne 2003; Canes-Wrone, Clark, and Park 2012; Gordon and Huber 2007; Huber and Gordon 2004), but only two studies have used rigorous econometric strategies to examine the systematic influence of partisan politics on