And who will investigate the investigators?

More and more, it becomes a pressing question in light of the growing national awareness of how much politics plays a part in federal prosecutions. It becomes more and more a pressing local question in light of the indictment of former MLG&W president Joseph Lee.

We were probably as critical as anyone of the actions of Mr. Lee in the last months of his tenure at the helm of the nation’s largest multi-purpose utility company, and we were equally perplexed at why Memphis Mayor Willie W. Herenton would force him into a situation that inevitably painted a target on his back.

A Federal Case

Despite our criticisms, we find yesterday’s indictments more of an indictment of the current U.S. Attorney’s office than of anyone else. It gives new meaning to the phrase, “making a federal case out of something.”

Seldom has so much been made out of so little.

As we have commented previously, there are few people whose integrity is as respected here as David Kustoff, who assumed the U.S. Attorney’s position in late 2005. Perhaps, some say, his lack of experience in criminal law creates an over-reliance on the old-timers on his staff who seem able to criminalize any behavior of which they disapprove.

The Yellow Brick Road

After generations benefiting from the public perception that federal prosecutors are above the whims of political interests and beyond the reach of partisan pressures, the curtain has been drawn back and all of us can now see Oz. If anything, the perceived wizardry at discerning the truth and fighting the just fight has now given way to the reality that there’s often a thumb on the scales of justice – the thumb of political considerations by the party in power.

It’s easy these days to feel Pollyannish, but we prefer to think that we were suffering from a malignant case of idealism that made us want to believe that the U.S. Attorney’s office could rise above the politics fundamental to a political system. And yet, it’s more and more clear that the tendency of the Clinton Administration to inject political influence where it didn’t belong has become an art form in the Bush Administration.

From surgeon general reports to NASA white papers to environmental alerts to scientific research, this administration has pressured experts to change their conclusions, and when they didn’t, the political appointees did it for them.

Ham And Egg (On Their Face)

It is in this vortex of political conceit that the Joseph Lee indictment has to be placed. We abhor the wrong-headed decision by Mr. Lee to place Councilman Edmund Ford’s overdue MLGW bills into an account for the truly disadvantaged and to give him special treatment, but it is difficult to understand how this rises to a criminal violation.

We know the old adage about the U.S. Attorney’s Office being able to indict a ham sandwich, but with this one, the office seems to have a boarding house reach.

Surely there are better ways to wield the overwhelming power of the federal government.

Reality Check

Here’s the thing. Like it or not (and we are in the latter category), this is the reality of government and public agencies. We even hazard a guess that Mr. Lee would have gone out of his way to do whatever he could to help any member of Memphis City Council if they called him. In fact, he did.

He’s just like any other political appointee operating in government. When the call comes, the pressure is on. It’s only released when the appointee has done something to help (or appears to help) the elected official calling him. There are also the calls of close friends of elected officials, or major contributors, or family, well, you get the picture.

It happens every day from the White House to the courthouse. The name of the game is for the appointee is to prevent complaints that he’s unhelpful or aloof or unresponsive and to keep from creating a political problem that festers until it explodes in a public meeting. In the case at hand, the ultimate objective if for Mr. Lee is to do whatever he can to do to prevent a hostile reception when he appeared before Memphis City Council with an important MLGW matter.

Like it or not, it is the nature of the beast.

A Bit Player

If the federal grand jury wants to take action, it would be more accurate to indict the whole system rather than one small actor playing his role within it. And, knowing that politics is every present in government, who assures the public that it’s not happening in federal prosecutions where questions of race, class and power tinge recent investigations?

If Joseph Lee’s indictment does anything, it effectively sends the message to every employee of government that they can be indicted at any time. It appears that expediting a permit for a friend of a friend is grounds for federal action, that allowing time payments for overdue tax bills is suspect depending on who you are, that serving on a campaign finance committee and then accepting a job in a new administration and that even being appointed to a committee setting policy could fall under the standards set by Mr. Lee’s indictment.

For years, federal investigators talked about their concerns about special privilege for special developers in building permitting and zoning, but the statue of limitations ran out with no action. They talked about their alarm at the public investment of funds influenced by political loyalties, but no action was taken. They’ve poked around the contracting process several times, but it always faded away. And yet, Mr. Lee’s decisions, of all things, produce an indictment.

No There There

If the charge is stupidity, he may deserve the death penalty, but the last we checked that wasn’t a federal infraction. Otherwise, we’d all have charges against us.

In reading the indictment, it’s inescapable to feel that there is no there there, fueling the simmering resentment in a large part of this community that there are two kinds of justice in Shelby County. (Not to mention that throwing Joe Cooper into the mix only seems gratuitious and designed to smear Mr. Lee further.)

Sitting in the rarified air of the federal building, investigators and prosecutors see Memphis out their windows and think they understand it. But like the guy who yells into the cave, hears his own voice and thinks all is well, they are inoculated from the real Memphis and the fulminating emotions that are only made more explosive when the federal system of justice over-reaches as badly as it has done in the case of Mr. Lee.

Burden Of Proof

We are certain that Mr. Kustoff is dead serious about cleaning up government (and there’s no denying it was needed), but it also seems that in being so intent on doing that, there is a definite lack of proportionality in his office’s decisions. If Mr. Kustoff is anything, it is someone who loves Memphis deeply, and rather than call press conferences urged on him by his assistants and the FBI, we hope he will get out into the community and take ownership of the anger and distrust that is building there.

There is no justice if there is no confidence in those who administer it. We’re not making any comment about any indictments of the Tennessee Waltz or Operation Main Street Sweeper or any of the similarly silly-named investigations launched here. But it is the U.S. Attorney that has the burden of proof to convince all of Memphis that his prosecutions are color blind and party neutral. There’s no better time than the present.

Lowering The Standards (And The Boom)

There are many things that we know about Mr. Lee. He is prone to bouts of self-importance, he made the mistake of seeing his job as serving Mayor Herenton more than serving his customers, he relied on clever legalisms when the truth would have set him free and he was unprepared for a job of the scope of the presidency of MLGW.

But that said, he is a person who is rigid about his moral foundation, and it is impossible to imagine him doing anything that he knew to be illegal. Somehow it seems that the line between what is an ethical lapse and what is a legal lapse is now forever blurred in the deliberations of the federal grand jury.

A friend, an FBI agent, once said: “We don’t pursue quid pro quos. They’re just too hard to prove.”

Apparently the standard has now been put so low that anyone can trip over it.