What Doesn’t NY DA Donovan Want You to Know?

Secret affidavits.  Redacted documents.  Prosecutorial abuse of power to protect the powerful from the insurgencies of the weak.  Sounds fairly typical for the FISA court intent on protecting our national security, but in a New York City courtroom?

On Thursday, a New York appellate court will hear oral argument in WFP v. Fisher, an attempt by the Working Families Party to insist that the Staten Island District Attorney fulfill his constitutional obligation and authority, and not to transfer it to an unelected and therefore unaccountable special prosecutor.  The WFP is asking the Court to return the case to the DA who seems not to want it, for reasons that have not been made public.

Some brief background.  The Working Families Party is a reasonably prominent third party active in state and local politics in New York.  Usually aligned with the Democrats, the WFP has a reputation as an effective advocate for the middle and working classes.  On the other side is Dan Donovan, the elected District Attorney of Staten Island, who has close ties to the borough’s Republican Party.

Three years ago, DA Donovan recused himself from an investigation of unspecified city council races in 2009 and asked that a special prosecutor be appointed.  While awaiting the appointment, the United States Attorney for the Southern District of New York — never hesitant to take on government corruption as the recent indictments of State lawmakers demonstrates — looked into the allegations and closed the case.  Nevertheless, Donovan persisted and called more than once for the appointment of a special prosecutor, apparently not holding the U.S. Attorney’s office in the same esteem others do.

Still, DA Donovan was within his legal authority to persist in seeking a special prosecutor, but what was so unusual was that he filed his original affidavit under seal and has never explained why he is unsuited to investigate the case himself.  Eventually Judge Fern Fisher granted the request and appointed the special prosecutor.  The case remains pending.

In response to a recent though untimely subpoena (three and a half years after the election at issue), the WFP sued Judge Fisher to request that the case be returned to Donovan’s office, and that the special prosecutor appointment be voided.  Donovan responded to the party’s request with a brief that is blacked out in the crucial pages, maintaining his commitment to secrecy in a case that cries out for transparency.

In part of the brief that remained unredacted, DA Donovan argued that prosecutors have an unreviewable right to self-recusal, especially in politically sensitive cases.  He does not seem to believe that government prosecutors must remain fair and impartial, uninfluenced by politics.  Absent the ability to remain above the political fray, how can a prosecutor maintain public confidence?

By sealing his original affidavit and redacting his response to the WFP’s suit, DA Donovan encourages speculation he is doing something underhanded that he wants to keep secret from New Yorkers.  His targets are justified in wondering whether the criminal investigation is a partisan witch hunt.  Politics aside, how can the WFP formulate a reasoned response to a brief its lawyers essentially cannot read?  This violates the precepts of fairness and transparency critical to a democratic form of government.

DA disqualifications are rare for good reason.  Under New York law, a district attorney must demonstrate that he and all assistants are unable to fairly investigate due to actual conflicts of interest, not the potential appearance of a conflict.  When current Nassau County District Attorney Kathleen Rice asked to be recused from a case, the Court denied her request, saying “a public prosecutor is the person most directly accountable to the people.”

Our legal system only works if the public believes in the equal application of the law and the judiciousness of the men and women who have the power of the state behind them.  It’s difficult to imagine what public good is served by this obsession with secrecy.  If DA Donovan has a legitimate conflict of interest that precludes him from investigating the case himself, he should reveal it.  If he does not, then he should fulfill the obligations of his office and investigate the allegations.