The art of the deal

NBC’s aging workhorse “Law & Order” is formulaic by design, and often plagued by leaden dialogue and mediocre acting (Sam Waterston as Executive Assistant District Attorney Jack McCoy appears to be on the verge of tears in every scene.). Nonetheless, even in its sunset years, it can occasionally hit the mark, particularly when it addresses one of its most recurrent themes: the tension between the law and politics, which is at the heart of the scandal du jour in Washington, D.C., over the firing of eight U.S. attorneys.

Take an episode in which a man suspected of kidnapping a young girl—who he has proven is alive—will not reveal her location unless he is promised that he won’t have to serve any jail time. McCoy agrees to make the deal, but his boss, District Attorney Arthur Branch (Fred Thompson), won’t allow it. It would set a nasty precedent and damage his office politically. McCoy risks his job by making the deal anyway, but Branch has outflanked him: He meets with the defendant-friendly judge hearing the case and convinces her to reject the plea agreement, which she does after the girl has been safely recovered.

Although the judge pointed out to Branch that she was appointed and has no plans to run for re-election, Branch reminds her, “The man who appointed you does.” Branch decides not to fire McCoy, who refuses to apologize. “You’re a great prosecutor, Jack. But you’ll never be a district attorney,” Branch says.

Arthur Branch is the latest in a succession of DAs to remind McCoy (and before him, Ben Stone, played by Michael Moriarty) that district attorney is an elected position. The prosecutors frequently debate the political ramifications of the case before them, with McCoy and his assistant DA often offended that such base considerations should influence the execution of justice. This seems rather naïve for high-level prosecutors, except when you view McCoy and his assistant—portrayed the last several years by attractive but increasingly interchangeable actresses—as surrogates for the audience.

Most of us, whether we are card-carrying members of the ACLU or the NRA, would like to think that justice is carried out without regard to the political consequences. It’s the rule of law vs. the rule of men. It’s why the most noxious act of the Nixon administration was not the dirty tricks that culminated in the Watergate break-in but Nixon’s attempt to subvert the FBI investigation, and why the Bush administration’s firing of the U.S. attorney seems so ominous.

But as “Law & Order” reminds us, politics and justice are forever intertwined, and in some ways that’s exactly as it should be. L & O definitely offers a right-ward tilted view of the criminal justice system. The rights of the accused are technicalities that protect the guilty, and defense attorneys come off as shamelessly opportunistic by pursuing outlandish defense strategies in order to make a political statement.

Yet the show offers one of the more honest accounts of the legal system in demonstrating the constraints that shape the pursuit of justice. McCoy may hate cutting deals, but there isn’t enough time and resources to send every defendant to trial. (And besides, sometimes his case isn't strong enough to prevail at trial.) One imagines that real-life prosecutors hate, for example, letting mobsters serve minimal jail sentences then live out their lives in the witness protection program, but their testimony may be the only thing that brings down a criminal organization.

In other words, the legal system entails choices and compromises, and many of those choices have to be made within the political system. Notice that none of the Democrats leading the charge against the Bush administration have suggested that U.S. attorneys shouldn’t serve at the pleasure of the president, or that they should be appointed to fixed terms, like the FBI director. Perhaps one president wants to make a priority out of prosecuting public corruption, while his or her successor wants to pursue more drug convictions.

Scarce resources demand that we set priorities, which is best done by people most directly accountable to the public--elected officials. Still, it’s nice to think that maybe there really are people out there like Jack McCoy to keep them honest.