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

Political ties and the need to cultivate support for nominations to higher o ce create a conflict of interest for U.S. attorneys and the prosecutors they supervise in political corruption cases. How severe is this problem? We document partisan di erences in the timing of public corruption case filings. Opposition defendants are more likely to be charged immediately before an election than afterward (relative to the president’s co-partisans). We find a corresponding di erence in case duration, suggesting prosecutors move more quickly to file cases against opposition partisans. These timing di erences, which we attribute to the career incentives facing prosecutors, are associated with greater promotion rates to appointed o ce. However, prosecutors do not appear to bring weaker cases against opposition party defendants before elections. We instead find evidence that co-partisans received less favorable treatment from prosecutors in plea bargaining and sentencing. These partisan disparities in case outcomes disappear following the Supreme Court’s decisionn in U.S. v. Booker. 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, the Robert Wood Johnson Foundation Scholars in Health Policy Research Program and the Undergraduate Research Opportunity Program at the University of Michigan, and the Social Science Research Council of Canada. We thank Jim Alt, Mauricio Drelichman, Linda Fowler, Sanford Gordon, David Green, Don Green, Scott Hendrickson, Michael Herron, Eitan Hersh, Dave Hopkins, Dean Lacy, Jacob Montgomery, Matthew Stephenson, Francesco Trebbi, and seminar/conference audiences at the Canadian Institute for Advanced Research, Dartmouth College, HEC Montreal, MIT, the Midwest Political Science Association, NBER Summer Institute, the Harvard Political Economy Lunch, the American Political Science Association, the Society for Empirical Legal Studies, 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, Evelyn Weinstein, and David Wylie provided excellent research assistance. Finally, we are grateful to Sanford Gordon for generously sharing his data. 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 o cials, 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). More recently, concerns about impartiality forced Attorney Generals Lynch and Sessions to recuse themselves from investigations into Senator Clinton and President Trump, respectively. Do political pressures like these influence prosecutors or other unelected o cials? Despite rules and procedures intended to ensure that they execute their powers faithfully, bureaucratic o cials often have substantial discretion to advance their own interests or biases (e.g., Miller 2005; Gailmard 2009). The potential for bias is an especially serious concern for prosecutors, who have wide latitude over the timing and content of charges and their resolution (Kessler and Piehl 1998; Rehavi and Starr 2014; Starr and Rehavi 2013). Concerns about political influence on prosecutorial conduct are particularly acute at the federal level given the ambitions for ascending to higher appointed or elected o ces harbored by many federal prosecutors. Their prospects for career advancement depend on both their legal reputations and their relationships with political elites in their party — two factors that may come into conflict in public corruption cases involving partisan defendants, especially around elections when elites perceive the stakes to be especially high. As the Department of Justice itself notes (2013), a public corruption case “always has the potential of becoming a high-profile case simply because its focus is on the conduct of a public o cial. In addition, these cases are often politically sensitive because their ultimate targets tend to be politicians or government o cials appointed by politicians. ” Therefore, like Gordon (2009) and Alt and Lassen (2014), we focus our analysis on public corruption cases, which are most likely to attract political attention and thus to generate partisan pressure on prosecutors. The key challenge in any empirical test for prosecutorial bias is that the researcher only