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

Rethinking Transparency in U.S. Elections

Bush v. Gore catapulted this country into a crisis of confidence in the management of our elections. Despite reforms since 2000, public confidence in election administration continues to wane. Are dead people on the rolls? Are noncitizens voting? Are provisional ballots wrongly rejected? State election transparency statutes meant to reassure the public that elections are producing legitimate results are often conflicting, vague, and even nonexistent. Exacerbating the problem, the last two decades have witnessed huge changes that offset the transparency balance. Dramatic changes in how Americans vote, how elections are administered, and who scrutinizes the election process call for a recalibration of election transparency norms. It is not immediately clear, as some are beginning to sense, that unqualified openness serves the fundamental goals of election transparency, that reactive access policies boost public confidence, or that current state transparency architectures tap the full potential technology offers. Circumstances demand not just statutory revision, but revisiting traditional assumptions about election transparency to accommodate radically changed circumstances. This paper contains a proposal pairing an increase in public access to election materials with penalties for harmful uses of election data. We have an opportunity to craft a modern transparency regime trained on the core goal of ensuring public confidence in election outcomes. Developing state transparency regimes that address—and take advantage of—modern realities is critical in an era when election controversy is the new normal

Transparency rules in U.S. elections need updating to reflect 21st century realities

Recent years have seen increasing scrutiny on election outcomes after accusations of ineligible voters and ballots wrongly rejected. Rebecca Green writes that the current rules on election transparency designed to reassure the public that elections are fair are no longer fit for purpose. She writes that these election transparency rules are based on dated assumptions and significantly changed realities concerning how Americans vote, how information travels, and how election oversight is conducted. She argues that state legislatures should review election transparency rules to ensure their clarity and improve election databases to allow voters to update their own information online

Arbitrating Ballot Battles

This short article posits that arbitration is an under-explored mechanism for resolving post-election disputes. As Professor Edward Foley documents in Ballot Battles: The History of Disputed Elections in the United States, post-election disputes have brought state and federal government to a political precipice numerous times in our history. A comprehensive, transparent, and fair arbitration process could well save us from another

Catching the Wave: State Supreme Court Outreach Efforts

State supreme courts have begun to grasp the many ways technology can connect the public with courts. This article will review some of the main trends in state supreme courts’ use of the Internet to educate the public about their work

Mediation and Post-Election Litigation: A Way Forward

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Petitions, Privacy, and Political Obscurity

People who sign petitions must accept disclosure of their political views. This conclusion rests on the seemingly uncontroversial (if circular) premise that petition signing is a public activity. Courts have thus far shown little sympathy for individuals who take a public stand on an issue by signing a petition and then assert privacy claims after the fact. Democracy, after all, takes courage, as Justice Scalia wrote in the petitioning disclosure case Doe v. Reed. But signing a petition today brings consequences beyond public criticism. The real threat of disclosure for modern petition signers is not tangible harassment, but the loss of “political obscurity” in a modern data architecture that exposes citizens to indelible Internet scrutiny and rampant political preference cataloguing. This Article argues that political obscurity is an important, unarticulated interest in the current discourse about privacy and petitioning. Courts and state administrators must take steps to protect it or risk drastically diminished participation in petition signing. Finally, this Article suggests that political obscurity has important implications in other areas of political participation. For example, those who contribute small amounts to political campaigns and petition signers may share a similar privacy interest. “Drop-in-the-bucket” political gestures ought not extinguish political obscurity

Counterfeit Campaign Speech

We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no business policing it. But most examinations of lies in campaigns involve “real” mistruths told by or about a candidate or issue. As identified here, counterfeit campaign speech is different than a lie; the perpetrator has put false words in candidates’ mouths or made candidates appear to take physical actions they have not. It is a form of fraud. Scholars and courts that have examined campaign deceit acknowledge that a narrow prohibition could survive constitutional scrutiny. A ban on counterfeit campaign speech fits that bill. This Article explains how it is possible and why it is necessary