By: Rachel Wydra, Volume 104 Staff Member
I. ROGER STONE AND PRESIDENTIAL INFLUENCE OVER CRIMINAL PROSECUTIONS
One of the more recent developments in the long saga of the Mueller investigation was the filing of two different government recommendations for the sentencing of Roger Stone. Stone, a long-time Republican advisor and ally of President Donald Trump, was found guilty on seven counts of lying to Congress and witness tampering stemming from the Mueller investigation. The first recommendation, filed by federal prosecutors assigned to the case and signed by the Interim U.S. Attorney for the District of Columbia, recommended seven to nine years, a punishment in line with federal sentencing guidelines. The second recommendation, filed just a day later by the Interim U.S. Attorney for the District of Columbia but signed by the Acting Head of the Criminal Division of the U.S. Attorney’s Office in D.C., stated that the prior recommendation would not “serve the interests of justice” and that the government would defer to the Court.
The two recommendations sparked strong suspicions by lawmakers, the public, and legal commentators that President Trump was directly involved in the second recommendation. The President’s angry tweets about the injustice of Stone’s prosecution and the unfairness of the initial sentencing recommendation strengthened these suspicions. This is far from the first time that President Trump’s opponents have suspected nefarious presidential influence at the Department of Justice (DOJ). Even the President himself has argued that a President cannot obstruct justice. Scholars have long studied the issue of presidential interference with the Department of Justice and the value of federal prosecutorial independence. Scholars’ suggestions have ranged from making the DOJ a completely independent agency to making it solely accountable to the government and presidential policy, rather than to a vague notion of “justice.”
Presumably, however, the President will always have an influence in any executive agency, and it would be difficult to completely eliminate conflicts between the President’s wishes and what federal prosecutors believe best serves the interests of justice. At the state-level, when a case presents a prosecuting agency with a conflict of interest, a separate agency or special prosecutor will frequently step in and conduct the prosecution. State political corruption crimes are prosecuted by federal attorneys. But at the federal level, there is no higher agency that can prosecute high-profile political crimes. Some legal commentators, however, have suggested that there should be a higher-up body to prosecute political crimes at the highest level of national governments and efforts have begun for an International Anti-Corruption Court (IACC).
Yet this Court would only prosecute cases from governments that are unable or unwilling to prosecute corruption. It would not be a solution for governments, like that of the United States, that can and do prosecute corruption, but struggle with political influence in these cases. In addition to an IACC, the international community should establish an international special prosecutor’s office that would act like a state attorney general’s office and send neutral international prosecutors to countries to prosecute high-profile crimes related to political corruption. This form of international prosecution would minimize conflicts of interest and be a positive step forward for the struggle against political corruption and undue influence in the United States.
II. IMAGINING THE INTERNATIONAL ANTI-CORRUPTION COURT
The first person to propose the idea of an IACC was Judge Mark Wolf, a senior judge of the United States District Court for the District of Massachusetts. Judge Wolf, along with South African Justice Richard Goldstone and others, formed the NGO Integrity Initiatives International (III), which advocates for international anti-corruption initiatives, including an IACC. III emphasizes the tremendous cost of corruption at the highest levels of government, both economic and human. To address the problem of corruption, the IACC would function much like the International Criminal Court (ICC) and would have its own prosecutors, investigators, and neutral judges. Like the ICC, these prosecutors would investigate and bring cases before the Court. Unlike the ICC, private “whistleblowers” could also bring cases before the Court. In theory, the Court would prosecute cases that national governments are unable or unwilling to prosecute and would hold countries internationally accountable. Support for the IACC has recently grown, with support from many international organizations and with support from both Colombia and Peru. The IACC is to be discussed by the United Nations at the Special Session of the General Assembly Against Corruption in 2021.
The problem with the IACC is that it only addresses rampant, obvious corruption. The IACC would not be designed to handle cases of political corruption from countries that are able and willing to prosecute cases of political corruption. The focus of the IACC would likely be on countries with egregious cases of corruption; for example, countries with an entrenched culture of corruption that do not even attempt to prosecute it, often leading to massive human rights violations and greater power given to gangs, drug cartels, and other organized crime groups. While the IACC would hold extremely corrupt governments accountable, it would not address the less obvious, less atrocious corruption in countries like the United States. In addition to an IACC, the international community should create an “International Special Prosecutor’s Office” to address corruption in all governments, not just the most egregious.
III. INTRODUCING THE INTERNATIONAL SPECIAL PROSECUTOR’S OFFICE
The relationship between the International Special Prosecutor’s Office and national governments would resemble the relationship between a county attorney’s office and a state attorney general’s office or the relationship between local and state governments and federal prosecutors. It would be a separate level of government and would be a step removed from the political corruption at issue. At the top of the Special Prosecutor’s Office, there would be an Executive Board with five members from various countries whose task would be to decide which cases to take on and then decide which Special Prosecutor would be appointed. The Executive Board members would rotate once every two years as a check on their power and neutrality.
Cases would be referred to the Executive Board by judges, public officials, or concerned citizens from the home country. The Executive Board would decide to pursue a case based on factors like the seriousness of the alleged offenses, the basis for the offenses, and the inability of a country to fairly prosecute the case without influence from political actors. The international special prosecutors themselves would come from countries all over the world and would be vetted to find the most neutral candidates possible. Then, when a case is assigned, a special prosecutor would be appointed from the office based on how far removed they are from that situation in the particular country. This would minimize conflicts of interest in political corruption prosecutions. Everything else in the prosecution would remain the same as in other criminal prosecutions in the respective country, like the judge, the jury selection process, and the applicable law.
The case of Roger Stone illustrates the advantage of having an international special prosecutor. After Roger Stone was indicted, if the case was accepted by the Executive Board, an international special prosecutor would have been assigned to the case by the Executive Board. The international special prosecutor would work on the case in partnership with the prosecuting agency (the DOJ) but would have the final authority to make key decisions, like the Stone sentencing recommendation. This partnership would allow for the country to maintain its autonomy because the case would still be prosecuted by the home agency and lawyers from the home country (who have knowledge of the country’s laws) would be highly involved in the case. But having a special international prosecutor overseeing the prosecution would allow for a more neutral prosecution that is less vulnerable to influence by political actors, like the President.
Thus, the International Special Prosecutor’s Office would function less like the International Criminal Court and more like international oversight institutions, like the International Court of Arbitration. This Court, part of the International Chamber of Commerce, provides “judicial supervision of arbitration proceedings” rather than acting as an independent court. Like this Court, the Special Prosecutor’s Office would provide a more neutral party to corruption prosecutions without completely taking over the home country’s legal system.
IV. SOME DRAWBACKS
There are drawbacks of the international special prosecutor. First there is the issue of effectiveness. The President of the United States is one of the most influential people in the world. It seems that the President would be able to influence an international special prosecutor. It would be nearly impossible to entirely obliviate presidential influence or interference in prosecution of political crimes. But having a person who is more removed from the national government, who is not accountable to the President and cannot be fired by the President, and is not from the country of prosecution would help to minimize the influence of political actors on these prosecutions. Because the special prosecutor would still be acting within a home country’s system, the ultimate outcome of the case would have the same power within the home country’s legal system as it would without an international special prosecutor.
Another problem with the international special prosecutor is the issue of national sovereignty. The Roger Stone prosecution was an American prosecution. The defendant was American. The victims were American. And the crimes occurred in America and affected American political life. Having a foreign national come in and take over a prosecution could be overstepping the bounds of national sovereignty. First, countries would have to agree to be a part of the International Special Prosecutor’s Office. It could not force itself on a country. Second, the relationship between an international special prosecutor and a national government can be analogized to the relationship between a federal prosecutor and a state government. The federal system prosecutes state-level corruption. This insures distance between the corruption and the prosecuting agency and also creates some level of neutrality. A federal level agency interferes with affairs of a state. In the same way, an international agency would interfere with the affairs of a country. The International Special Prosecutor’s Office would impinge on the rights of countries, but the potential benefit is a fairer, less biased prosecution.
 Katie Benner, Sharon LaFraniere, & Adam Goldman, Prosecutors Quit Roger Stone Case After Justice Dept. Intervenes on Sentencing, N.Y. Times (Feb. 20, 2020), https://www.nytimes.com/2020/02/11/us/politics/roger-stone-sentencing.html.
 Darren Samuelsohn, Roger Stone Sentenced to over 3 Years in Prison, Politico (Feb. 20, 2020), https://www.politico.com/news/2020/02/20/roger-stone-sentenced-to-over-three-years-in-prison-116326; Kristine Phillips, Kevin Johnson, & Nicholas Wu, ‘Truth Still Matters’: Judge Sentences Roger Stone to 3 Years in Prison for Obstructing Congress’ Russia Investigation, USA Today (Feb. 20, 2020), https://www.usatoday.com/story/news/politics/2020/02/20/roger-stone-sentencing-hearing-underway/4798388002/.
 Mikhaila Fogel, What Really Happened at the Roger Stone Sentencing, Lawfare (Feb. 21, 2020), https://www.lawfareblog.com/what-really-happened-roger-stone-sentencing.
 Id. (quoting the second sentencing recommendation).
 See, e.g., Nicholas Fandos, House Democrats Inquire About Political Interference at the Justice Department, N.Y. Times (Feb. 28, 2020), https://www.nytimes.com/2020/02/28/us/politics/political-interference-doj.html (reporting that House Democrats are investigating the dual sentencing recommendations and the resignation from the Roger Stone case by four federal prosecutors); Mikhaila Fogel et al., The President Tweets and the Justice Department Responds, Lawfare(Feb. 11, 2020), https://www.lawfareblog.com/president-tweets-and-justice-department-complies (showing great suspicion about President Trump’s interference in Stone prosecution).
 Fogel, supra note 3.
 See Benjamin Wittes, The Flaw in Trump’s Obstruction-of-Justice Defense, Atlantic (June 4, 2018), https://www.theatlantic.com/ideas/archive/2018/06/even-the-president-can-obstruct-justice/561935/.
 See, e.g., Bruce A. Green & Rebecca Roiphe, Can the President Control the Department of Justice, 70 Ala. L .Rev. 1 (2018); J. Richard Broughton, Politics, Prosecutors, and the Presidency in the Shadows of Watergate, 16 Chap. L. Rev. 161 (2012).
 Scott Ingram, Representing the United States Government: Reconceiving the Federal Prosecutor’s Role Through a Historical Lens, 3 Notre Dame J.L. Ethics & Pub. Pol’y 293 (2017) (arguing that the federal prosecutor should enforce policy not pursue justice and presenting arguments on the opposite end of the spectrum).
 See Wittes, supra note 7 (discussing the executive power and the President’s ability to obstruct justice to a certain extent).
 E.g., Jussie Smollett Case: ‘Empire’ Actor Indicted in Chicago, Special Prosecutor Says, NBC Chicago (Feb. 11, 2020), https://www.nbcchicago.com/news/local/jussie-smollett-case-empire-actor-indicted-by-special-prosecutor-in-chicago/2217410/ (discussing the appointment of a special prosecutor to a politically-charged case in Chicago).
 Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption, 92 Ky. L.J. 75, 75–76 (2003).
 See Matthew C. Stephenson & Sofie Arjon Schütte, An International Anti-Corruption Court? A Synopsis of the Debate, U4 (2019), https://www.u4.no/publications/an-international-anti-corruption-court-a-synopsis-of-the-debate.
 Mark L. Wolf, The Case for an International Anti-Corruption Court, Brookings (July 2014), https://www.brookings.edu/wp-content/uploads/2016/06/AntiCorruptionCourtWolfFinal.pdf.
 See Board Members, Integrity Initiatives Int’l, http://www.integrityinitiatives.org/board-members (last visited Mar. 5, 2020).
 See Integrity Initiatives Int’l, http://www.integrityinitiatives.org/ (last visited Mar. 5, 2020).
 See Wolf, supra note 15.
 Stephenson & Schütte, supra note 14.
 The International Anti-Corruption Court, Integrity Initiatives Int’l, http://www.integrityinitiatives.org/international-anticorruption-court (last visited Mar. 5, 2020); Special Session of the General Assembly Against Corruption 2021, UN Office on Drugs and Crime, https://ungass2021.unodc.org/ungass2021/index.html (last visited Mar. 5, 2020).
 See Wolf, supra note 15.
 See id.
 See Wolf, supra note 15.
 ICC International Court of Arbitration, ICC, https://iccwbo.org/dispute-resolution-services/icc-international-court-arbitration/ (last visited Mar. 28, 2020).
 See The World’s Most Powerful People, Forbes (2018), https://www.forbes.com/powerful-people/list/#tab:overall (listing Donald Trump as #3).
 See Wittes, supra note 7 (discussing President’s ability to fire federal agency actors).
 Henning, supra note 13.
 Wolf, supra note 15.
 Henning, supra note 13.