You told an interesting story to Jane Mayer of the New Yorker about a sting operation from those days, an investigation you conducted of Paul Lawrence, a state trooper with a high arrest rate, whom you caught setting up an innocent man, an undercover cop you'd brought in from Brooklyn. This influenced you in making sure that there are checks and balances when it comes to law enforcement. The story said this motivates you today in your battles with the Ashcroft Justice Department. Was that case really so powerful?
Well, I don't know what's the chicken and what's the egg on this. Whether my own thinking grew and evolved as a state attorney and that's why I was able to go after this person, or while I was going after this person I realized more fully that those of us with positions of trust and authority should respect that. In any event, I knew we had someone who had run pretty well free throughout the state -- except in my county -- arresting people, some of whom were probably guilty, but an awful lot of whom were framed.
When he came to my county, where I was the prosecutor, I saw an opportunity to expose him for who he was. So we arrested him, and put in motion what came out a year or so after I left the state's attorney's office when the governor made a very difficult decision and pardoned everybody [Lawrence] had arrested prior to my arresting him. He did that knowing that some of the people he had pardoned were of course guilty. But it was impossible to determine which ones were guilty and which ones had been framed. The governor had been put in an impossible situation.
But he also knew that had I not moved to arrest him -- and had we not had some police officers in that jurisdiction who felt as I did about positions of trust and authority -- he would have continued to operate as he had. And a whole lot of innocent lives would have been wrecked. So those police officers worked with me in my efforts to trap the person.
One of the things you learn very quickly as a prosecutor: it's very easy to charge someone, it's very easy to wreck someone's reputation just by bringing charges. Because no matter what they say about the presumption of innocence, usually the presumption is that the prosecutor has the right person and otherwise he wouldn't be in court.
That's why there's a greater burden on the prosecution to make sure that people's rights are protected. The defense attorney comes in after the arrest has been made, the courts come in after the arrest has been made, but it's the prosecutors who decide whether the arrest should be made at all. Or they decide that this person shouldn't be arrested and tried in the first place. The most discretion belongs to the prosecutor. He can do things police can't do, things a judge can't do, things a defense attorney can't do.
Do you really think the state's attorney job was better than the one you have now?
Well, I say that somewhat from a sense of irony. But it was a better job in this sense: I could make determinations for the public often on my own, and make sure that what I felt was right was the outcome. But when I was a prosecutor, I said that nobody should have that job for more than ten years or so. Because you do have the ability to play judge and jury. You don't have the checks and balances that you might have in a legislative body. Obviously I've been able to use talents -- to the extent that I have talents -- to a greater extent in the Senate than I could as a prosecutor. But it's also faster as a prosecutor.
Long before Sept. 11 you said, "Everybody is in favor of the First Amendment, but we'd have a hell of a time ratifying it today." You must feel that in today's climate it'd be doubly tough.
Not just in today's climate, in any climate. Take the worst-case scenario. Imagine we're in the McCarthy era. People would say, "What do you mean you want the First Amendment for Communists too?!" Today it would be, "What? For terrorists, too?!" It's easy to say "Free speech -- but not for that idiot that says 'fill-in-the-blank.'"
The beauty of the First Amendment -- it's an absolute. That's what so beautiful about it. You have the right to practice a religion -- or not to practice a religion -- as you see fit. It allows you to say what you want, including unpopular speech. It guarantees diversity. And when you guarantee diversity, you guarantee democracy.
About the writer
Jake Tapper is Salon's Washington correspondent and the author of "Down and Dirty: The Plot to Steal the Presidency."
Related Stories
The Salon Interview archive
Links to all the interviews related to the Sept. 11 attacks and the events that have followed, including Susan Sontag, Pat Buchanan, Kurt Vonnegut, Larry Flynt and more.
Story finder (3 ways to search Salon)
Salon Directory (browse by topic)