Careful what you wish for: Independent prosecutors abroad often go rogue

The U.S. president has wide latitude in the hiring – and firing – of federal prosecutors. Indeed, President Trump replaced the FBI director, trumpeted his authority to fire Special Counsel Robert Mueller and mused about dismissing Attorney General Jeff Sessions. His behavior has sparked outcries of obstruction of justice and lead to questions about whether the U.S. democracy would be better and healthier with more independence for prosecutors.

Indeed, in most Latin American democracies, the system is quite different. The region’s history with leaders who abuse the rule of law – “for my friends anything, for everyone else, the law,” was a common saying – led reformers to insulate prosecutors in autonomous agencies not beholden to the executive branch. But this independence created its own set of challenges, as prosecutors operate with limited oversight and sometimes pursue political aims. Those troubled by events in the United States should consider the risks to excessive prosecutorial independence before replicating the Latin American model. 

{mosads}During their transitions from brutal authoritarian regimes, Latin American nations attempted to protect prosecutors from political meddling. In Central and Latin America, only Mexico and Uruguay have justice ministries similar to the U.S. Department of Justice, where the chief prosecutor serves at the pleasure of the president. In almost all other Latin American countries, the equivalent of the U.S. attorney general leads an autonomous office and can only be removed through impeachment.

There are varying degrees of autonomy. In some cases, such as Paraguay, the president retains the power to hire and fire the attorney general, but the attorney general’s office has independent oversight and budget authorities. In other nations, the attorney general is not even appointed by the president, but rather selected by congress or the supreme court. Those wary of Trump’s apparent influence over prosecutors – and his efforts to disrupt the Russia inquiry or spur investigations into adversaries, such as Hillary Clinton and James Comey – might find the Latin America model appealing. But the increased independence of prosecutors comes with drawbacks.

Argentina offers a cautionary tale. Argentine history is marred by repressive dictators who abused their authority and committed grave human rights abuses, as well as elected presidents who misused law enforcement institutions. To prevent similar misconduct, Argentina created a public prosecutor’s office free from executive branch control. President Mauricio Macri inherited that system after his election in 2015. He won, in part, thanks to public disgust with corruption by his populist predecessor, Cristina Fernández de Kirchner.

Since taking office, he has moved to improve transparency and strengthen democratic institutions. Those efforts have been lauded internationally, and spurred hopes of a changed direction in Argentina. But Macri’s anti-corruption agenda has been stymied by an unlikely adversary: his own attorney general, Alejandra Gils Carbó.

Gils Carbó was appointed by Fernández de Kirchner in 2012 and is considered an apologist for her former boss. Yet under the Argentine constitution and law, she is free to remain in her post until her 75th birthday, in 2033. In the meantime, the only way to remove her is impeachment by the Argentine congress – an unlikely scenario given the majorities maintained by the opposition Peronists. The accusations against Gils Carbó are wide-ranging. She reportedly instructed prosecutors to slow investigations into corruption cases involving Kirchner administration officials. Even worse, critics say, she attempted to fire a prosecutor, José María Campagnoli, to thwart his investigation into a businessman and close Kirchner ally, Lázaro Báez, on money laundering charges.

The Argentine courts blocked Campagnoli’s removal, but with countless investigations into Kirchner-era corruption plodding along in pre-trial procedures, concerns remain regarding the attorney general’s influence. Gils Carbó, meanwhile, has her own corruption charges to worry about; she has been criminally charged for administrative fraud, following an inquiry into her alleged diversion of state funds to purchase a building from a real estate firm with ties to her ex-husband.

Gils Carbó denies any wrongdoing, and has vowed to remain in her post. Macri has argued that she has no “moral authority” to hold the office, and his justice minister called for her departure. There is even a Change.org petition calling for her removal. But given the autonomy of the attorney general’s office, she is going nowhere for the foreseeable future.

Undoubtedly, prosecutorial independence is a worthy tool for preserving the rule of law. Indeed, the staggering Lava Jato (Car Wash) investigation in Brazil is only been possible thanks to the autonomy enjoyed by Brazilian prosecutors, who have targeted two former presidents, influential lawmakers and prominent corporate executives. But the Argentine example shows that full autonomy is not a perfect antidote to obstruction of justice or politically motivated prosecutions.

The reforms proposed so far in the United States – an obligatory congressional review of the firing of a special prosecutor, and prohibiting the removal of an FBI director absent congressional impeachment – are a reasonable starting point. But reformers should be cautious not to move too far in this direction. After all, complete prosecutorial autonomy does not guarantee an end to the hazards of politically motivated prosecutions. For that, it is necessary to have both politically impartial, and legally accountable, officials.

Benjamin N. Gedan is a former South America director on the National Security Council and a fellow at the Woodrow Wilson International Center for Scholars. William Schuette is a research assistant at the Wilson Center.