The Fifth Circuit should overrule the federal district judge in M.D. v. Abbott and put an end to the judicial interference with Texas’ foster care system.
Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.
Some months ago, netzpolitik.org, a German version of wikileaks, published confidential documents containing budgetary and internet surveillance plans for the Bundesamt fuer Verfassungsschutz (“BfV,” a rough counterpart to our NSA. Behold the title, though: the Federal Office for the Protection of the Constitution.). In response, the head of the BfV submitted a formal, criminal complaint against unknown parties to the chief prosecutor—for treason. Under German law, that office must investigate all credible complaints (as this one certainly is). Within limits, the office can exercise its discretion in deciding to find sufficient cause for an indictment; but it can’t say at the front end, “never mind.” This isn’t some statutory oddity. It’s high-level constitutional stuff. The Generalbundeswalt’s fearsome power, the theory goes, represents the state’s Wille zum Recht—its will to impose law. If he could exercise his authority, or not, in his own discretion, that would be raw will to power—a Wille zur Macht. Germany has had quite enough of that, thank you.
Right away, though, Mr. Range realized that he had a huge problem. The overwrought charge of treason conjured up memories of Germany’s Watergate—the notorious Spiegelaffaere of 1962, when a very similar, politically motivated prosecution against the publishers and editors of the weekly Der Spiegel caused a huge ruckus over threats to the “freedom of the press,” tossed the popular Adenauer government into a crisis, and eventually prompted the resignation of the cabinet minister (Franz Josef Strauss) who by all appearances had engineered the prosecution to get even for the Spiegel’s highly unfavorable coverage of his policies. Mr. Range wanted no replay, especially not because it quickly became apparent that the treason charge applied not so much to the netzpolitik leakees but rather the leakers at the BfV or perhaps the parliamentary committee that had examined the BfV’s reports. Still, calling the whole thing off would have exposed Mr. Range himself to criminal charges, for interference with the legal process. So Mr. Range covered his rear end, to the extent possible: he kept his superiors at the Ministry of Justice informed, and he commissioned an independent expert report as to whether the leaked materials in fact constituted state secrets.
Whereupon the Ministry instructed Mr. Range to yank the expert report: the Ministry would commission its own report. (The likely but not-yet-certain reason for the move: very likely, the Chief Prosecutor’s experts were about to find that state secrets were involved.) When Chancellor Merkel expressed “no objection” to the Justice Minister’s maneuver, Mr. Range knew he was toast. At a press conference, he stated his refusal to replace one piece of evidence with another, in the middle of a legal proceeding. The Minister of Justice had no choice but to fire Mr. Range for insubordination. And so he did.
The German media are in an uproar over the affair. That’s a sign of a functioning democracy and an awareness of the importance of the rule of law—Rechtsbewusstsein, as the Krauts say without any “ofs.” And even from across the pond, there’s a lot to ponder here.
The vexing problem is the conflict between law and politics or, more precisely, executive power. It’s easy enough to mount one’s pony in defense of a “free internet” and to demand that the government leave those fearless freedom fighters alone. But our intuitions would surely change (would they not?) if Mr. Range had received credible complaints about money laundering by the Deutsche Bank and then decided, the heck with that. No prosecutor can possibly investigate every idiotic complaint; to that extent, the German “vee must investigate” position seems over the top. But we’re not talking about traffic violations. At some level, one has to decide whether there is an executive power to direct non-prosecution even in the presence of probable cause—for good reasons, bad reasons, or no reason at all.
Under U.S. law, the answer is basically “yes.” (Our debate now is whether the Executive can suspend the law for entire classes of people—an idea that would not occur to the fastidious Germans.) Our capacious notion of executive direction and discretion may be right. But I’m not at all sure that it’s compatible with Germany’s version of the rule of law, and in any event I’m somewhat uncomfortable with it. If all or even half of our criminal laws were actually enforced, we’d all be in jail. So the power that matters is the power to exempt and suspend and dispense, and at the limit that’s no different from an unconstrained “will to power.” There’s the dilemma: we want the law to be enforced, except when we don’t.
I can’t think of any easy solution. My best answer is that at least in big cases, you want the power to exempt (etc) to be exercised in a highly conspicuous, public fashion. Alas, that’s not the way the world works. Mrs. Merkel and her Minister of Justice did not say, “this one is on us”; instead, they ordered up their own “expertise” and maneuvered an honorable public servant into an untenable position. Same in this blessed country: usually in these situations, the powers-that-be put up a veneer of legality and find a fall guy. (Rule of thumb: the fall guy is always the one with the rule of law on his shirtsleeves. Go ask Ted Olson, or Scooter Libby.)
The tension between law and politics extends to the chief prosecutor’s status. Technically, the prosecutor is an officer of the courts. His official title is “Generalbundesanwalt beim Bundesgerichtshof” (“BGH”—Germany’s highest court for most legal questions), and his office is not in Berlin but in Karlsruhe, where the BGH as well as the Federal Constitutional Court are located. Organizationally, though, the chief prosecutor is part of the executive and subject to the direction of the Minister of Justice. His failure to take that direction is what got Mr. Range fired.
Can he be fired—and if so, for what reason? That’s the Teutonic version of Humphrey’s Executor, and the answer is kind of complicated. Unlike here, just about every public officer over there is a member of the civil service—a Beamter. They can be fired only for the most compelling reasons (pedophilia on the premises, or something of the sort), and most certainly not for political reasons. However, at the very top echelons, there are politische Beamte. Unlike ordinary civil service officers they are subject to political, executive direction. There’s only a handful of these characters—assistant secretaries of state and of higher nonsense. The Generalbundesanwalt is among them. Their function is to say “Yes, Minister.” They must be in agreement with the elected government’s objectives, and they must enjoy that government’s confidence. Technically and under the law, they can be fired for any reason, or no reason at all.
(“Fired” isn’t quite right: they can be moved into a state of einstweiliger Ruhestand, meaning a temporary state of retirement or repose. Maybe that’s because the Beamte are the State; and since the State can’t die or be fired its members, upon dismissal, enter a public purgatory with pensions. It’s a Hegelian thing and I’m not sure I have this right. So let’s drop it.)
This doesn’t happen very often. E.g., Germany has had a bunch of governments since 1949 but only ten or so chief prosecutors. It’s even less common for the removed officers to complain, mostly because they’re looking for private sector jobs and don’t want to look like malcontents. But in a few cases, courts have held that the government has to give reasons for a removal after all. Courts review the decisions for abuse of discretion.
There is no prospect that Mr. Range’s removal would be found unlawful. But it has a good part of Germany’s legal establishment in a tizzy: we can’t have politics corrupt the administration of justice in this fashion. Given the circumstances they have a point. But then what’s the alternative—a fully independent, non-removable chief prosecutor? We have experimented with that over here, and that did not end well. It’s probably better to accept that prosecutions of this sort are inherently political; so of course the elected executive will get into the act. One way or the other you’ll have to live with the tension between the rule of law and democratic government.
How that tension will play out in this case remains to be seen. While the investigation against netzpolitik.org has been officially dropped, complaints have been received, and investigations are pending, as to whether leakers at the BfV or members of the legislature and their staff may have broken laws governing the disclosure of state secrets. (Unlike charges of treason such matters are prosecuted by state rather than federal authorities.) That, to me, looks like a promising line of inquiry. What genius at the BFV thought of cranking up the treason charge that got this thing rolling? Most likely, someone wanted to deflect attention from possible leaks at the BfV itself. Brilliant maneuver.
There’s even a pending complaint that the Minister of Justice may have broken the law: obstruction of justice. Wow. They take the rule of law jazz seriously.