It has been almost two and a half years since the departure of Palau’s last Special Prosecutor, price Micheal Copeland, who resigned February 1, 2010. During this vacancy period, many outspoken critics of the President have complained that the absence of a Special Prosecutor during much of the Toribiong Administration has been entirely purposeful. In fact, the five “minority” Senators who privately sued the President for alleged wrongful criminal and civil conduct while in office argued that such a suit would have been filed by a Special Prosecutor, if there had only been one.
In defense, the President has consistently explained that he submitted a suitable candidate for the Special Prosecutor position nine months after Copeland’s resignation, but that nominee was rejected without reason by the Senate. The President has since held steadfast that he will not submit another qualified nominee only to have them subjected to scrutiny and then rejected.
During his term of office, President Toribiong has all but dissolved the Special Prosecutor’s Office by transferring all of the former Special Prosecutor’s investigative files and cases to the Attorney General’s Office. In fact the Attorney General’s Office has previously announced that it had assigned all of the SP’s files and investigations to Assistant AG Brently Foster.
In a somewhat startling pronouncement, by a letter dated August 1, 2012, the President now sees fit, five months before the end of his term, to make another Special Prosecutor nomination and has put forth his current Assistant AG Brently Foster to be the next Republic’s independent Special Prosecutor.
Unlike the Attorney General’s Office, who works under the direction and control of the President, the President is expressly prohibited from interfering with the Special Prosecutor’s decisions or actions. 2 PNC §503(b). In other words, the Special Prosecutor does not work for the President and is tasked to be wholly independent. The Special Prosecutor is statutorily authorized to “act as the prosecutor” in cases where the President’s Ministry of Justice cannot for ethical reasons handle the case or where there is “an actual or potential conflict of interest.” 2 PNC §503(2).
Whether the President’s current legal staff member can serve conflict-free as the nation’s independent counsel poses interesting legal and ethical questions about the role and function of the Special Prosecutor. When OTV asked the President for his comment about this potential conflict, he that Ms. Foster is a professional and as such she will be obligated to handle matters free from any actual or potential conflict. Further, the President noted that Copeland was former President Remengesau’s Assistant Attorney General prior to holding the Special Prosecutor post.
The President’s letter refers to his “statutory obligation” to appoint a Special Prosecutor as the reason that he has nominated Assistant AG Foster for the Senate’s consideration.
