Law and Order almost went over the deep end!

Last night’s episode of Law and Order had an embarrassing plot.  http://en.wikipedia.org/wiki/Law_&_Order  Jack McCoy had Michael Cutter prosecuting a former Justice Department lawyer for writing a memorandum that authorized the use of “harsh” interrogation techniques on “unlawful combatants” captured in Iraq.   This entry is not going to wade into the swamp of debating whether the real life Bush administration legal memoranda on that subject were correct. Rather, I would like to comment on the jurisdictional issue raised in the show.

If you have ever watched the show, you know that Jack McCoy is the fictional District Attorney in the Borough of Manhattan. How could he prosecute a federal official for an official action?  They played with the plot so that the memorandum of law was written in Manhattan to provide a fig leaf’s worth of jurisdictional facts. This is a stretch in and of itself.

McCoy had Cutter prosecute the author of the memorandum, who conveniently was teaching law in Manhattan.  The issues were never resolved, since the federal courts stepped in and ended the prosecution before the jury verdict was received by the court.  Since a jury had been empaneled, jeopardy had attached and the alleged miscreant was home free.

I find the plot disturbing for two reasons. From what I have read, NYU law students and professors are used as consultants to the script writers to make sure that the language in the scripts and the plots themselves are reasonably connected to the law as it really is.  The show’s consultants ought to refresh themselves with the case of  In re Neagle, 135 U.S. 1 (1890).

If you are not familiar with that case, here is a brief summary of the facts of the case.  In Neagle, ”[T]he U.S. Supreme Court asserted federal supremacy over state law. President Benjamin Harrison had directed David Neagle, a deputy U.S. marshal, to protect Justice Stephen J. Field of the Supreme Court against a death threat. Neagle shot and killed would-be assassin David S. Terry as Terry made a murderous assault on Field in  California.  Arrested by state authorities and charged with murder, Neagle was brought before the federal circuit court on a writ of habeas corpus and released on the ground that he was being held in custody for ‘an act done in pursuance of a law of the United States.’ His release was upheld by the Supreme Court.” http://www.novelguide.com/a/discover/dah_04/dah_04_02004.html  http://www.law.cornell.edu/supct/html/historics/USSC_CR_0135_0001_ZS.html

I studied that case both as an undergraduate and as a law student. To the best of my knowledge and belief, the holding in Neagle is still good law. http://en.wikipedia.org/wiki/Supremacy_Clause  It is also preeminently sensible. I am saddened that the usually reasonably legally accurate scripts of Law and Order departed from their high standards to pursue a left-wing fantasy and/or high ratings.  They can do better.

The other disappointing aspect of the plot was the anarchical vision that is implicit in McCoy’s decision to prosecute a federal official for his official actions. If local prosecutors begin to prosecute federal officials for actions which might tangentially have violated state law, we might has well dust off our copies of the Articles of Confederation because that is where we will be headed.

I am not advocating that errant federal officials get a free pass if they break the law. Rather, they should be prosecuted for official misconduct under federal law.

As a long time viewer of the series, I have come to expect that McCoy’s actions will reflect the character’s left wing view of the world. That I can live with. But suggesting that it is appropriate to prosecute federal officials acting within the scope of their authority in state court is overdoing the propagandizing.  They can do better. I hope that they do.