May Federal Prosecutors Take Direction From the President?

Suppose the president sought to serve as prosecutor-in-chief, telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president’s direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president has no constitutional or statutory authority to control federal criminal prosecutions. But suppose one comes to the contrary conclusion—that the president, as chief executive, has authority to decide how individual criminal prosecutions should be conducted. In this Article, we explore the consequences for prosecutors who receive the president’s orders. We argue here that federal prosecutors cannot invariably and unquestioningly follow the president’s direction because doing so would violate ethical rules and professional norms. Further, because prosecutors’ professional obligations are created by courts and endorsed by federal statute, presidential control over prosecutorial decision-making would lead to serious separation-of-powers concerns. Particularly, the integrity of the judicial system depends on the ethical rules at issue. By exploring these separation-of-powers concerns, this Article contributes to a growing debate about the power of the executive over prosecution and further supports the independence of the DOJ and federal prosecutors

Lawyers and The Lies They Tell

The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of their fiduciary relationships with courts and clients. For instance, states can sanction lawyers for some speech inside a courtroom that would be protected if uttered by a non-lawyer. This Article explores whether lawyers’ free speech rights should also be different from those of other speakers when lawyers, acting on their own behalf, participate in political discourse. Applying the current First Amendment framework, the authors question the bar’s assumption that, simply because lawyers are subject to rules of professional conduct, courts can regulate lawyers’ speech outside the practice of law more restrictively than the state regulates others’ speech. The authors disagree with the premise that lawyers do not deserve the same robust protection for disfavored political speech afforded to political speakers in general. Ultimately, the Article argues that the First Amendment calls for strict scrutiny of professional conduct rules subjecting lawyers to punishment for lying in the public media on subjects of political concern. On rare occasions, applying the rules can be justified under this standard of review. However, when lawyers, acting in their private capacity, tell political lies to the public, the rules will often fail to closely serve an important state interest as required to satisfy this standard

A Fiduciary Theory of Progressive Prosecution

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is exercising discretion in individual cases based on a broad array of relevant considerations. This ad hoc discretionary decision-making process assures the public that prosecutors are drawing on their expertise to pursue justice in a basic sense rather than coopting the process for the benefit of some subset of the public. The Article concludes by suggesting ways in which progressive prosecutors can pursue their conception of justice while still adhering to the fiduciary role

Who Should Police Politicization of the DOJ?

It is generally accepted that federal prosecutors should not use their authority in individual criminal cases to promote partisan objectives. It is less clear who is best suited to investigate and resolve allegations that prosecutors, including possibly the Attorney General, have misused federal power in this manner. Various different officials and agencies have some authority to uncover corruption and political bias in the Department of Justice: At least in some situations, trial courts, federal and state disciplinary authorities, Congress, as well as several units within DOJ itself, can pursue a claim that a particular federal prosecutor was acting for impermissible partisan reasons. This essay analyzes these different actors’ roles and responsibilities and concludes that, for two reasons, the DOJ Inspector General (“IG”) is in the best position to serve this function and ought to be given broader authority to do so: first, IGs are least likely to have a political bias themselves; and, second, the IG has the requisite experience to conduct a thorough investigation and the statutory mandate to make an investigation public. Further, the IG’s power is held in check by Congress, as well as by the President, who has the power to remove the IG from office

When Prosecutors Politick: Progressive Law Enforcers Then and Now

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of prosecutors received a good deal of popular attention and support. The Progressive Era reformers introduced the notion promoted by current progressive prosecutors that crime is a social phenomenon, which community services are better equipped to address than prisons. The Progressive Era movement also sought to implement professional norms and practices to promote the values of fairness and proportionality. Contemporary progressive prosecutors inherit this legacy but tend not to emphasize these professional values. The Article concludes that the professional values championed during the Progressive Era are critical, in conjunction with new programs and policies, to ensure that as innovation helps achieve social justice, prosecution remains in the hands of those committed to fair and even-handed justice

Novel Perspectives on Due Process Symposium: Punishment Without Process: “Victim Impact” Proceedings for Dead Defendants

When women accuse powerful men of sexual assault, there is increasing public pressure to resolve any doubts in the accusers’ favor before the criminal process is over, if not from the outset. Private individuals and institutions often do so without worrying about due process, but it is different for the trial court, where the presumption of innocence is supposed to apply. This is especially true where public shaming and the accompanying reputational consequences already constitute a kind of punishment. Although they may be sympathetic to accusers, especially those whose cause is championed by a strong and popular social movement, courts should not succumb to pressure to undermine the presumption of innocence