Revisiting Abbe Smith\u27s Question, Can a Good Person Be a Good Prosecutor? in the Age of Krasner and Sessions

In an article published over fifteen years ago, Georgetown Law Professor Abbe Smith argued that one cannot be a good person and a good prosecutor. In other words, if you are concerned with social justice, it would be selfdefeating to work in a prosecutor’s office. With Attorney General Jeff Sessions at the helm, the federal criminal justice system has changed since Smith wrote this article, in many ways for the worse. At the same time, in response to a powerful grass roots movement, the reformist approach to criminal justice has gained some ground. In this oddly polarized context, this essay revisits Abbe Smith’s question and concludes that not only can one be a good person and a good prosecutor, but individuals devoted to social justice and concerned about flaws in the criminal justice system should seriously consider a career in prosecution. The radically different views towards criminal justice shared by prosecutors and the public offer an opportunity for change, in a volatile atmosphere in which commitment from within is a promising route to reform

A Typology of Justice Department Lawyers\u27 Roles and Responsibilities

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between independence and responsiveness to the administration. By explaining these roles and responsibilities, this Article both describes the different DOJ lawyer roles and seeks to strengthen the institution by making the informal norms that preserve and protect its mission more explicit. The Article concludes that, as DOJ expanded, it evolved to allow the Attorney General to balance the political and legal responsibilities of his office. He does so by advising and implementing administration policies while preventing impermissible political considerations from influencing those DOJ officials who are charged with the neutral interpretation and enforcement of the law

Lawyering at the Extremes: The Representation of Tom Mooney, 1916-1939

This article explores the complex and often strained relationship between Tom Mooney, the famous labor radical who was framed for a bombing murder, and his lawyers over the course of the 23-year long battle to gain his freedom. The author uses the lawyers’ archives to explore the intense difficulties that arise between a client who believes the legal system is hopelessly corrupt and his lawyers who hope to free their client and redeem the justice system at the same time. While sympathetic to Tom Mooney and the lawyers, Roiphe concludes that an independent legal profession struggling to negotiate its obligation to the client and the system is a fundamental aspect of the American democratic system

Redefining Professionalism

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community as a whole. In exploring one aspect of professionalism – the notion of professional independence – this Article has two goals. The first is to redeem professionalism by reconceiving it as an aspect of group identity, an identity based primarily on lawyers’ work rather than an ideology built on the distinction between law and business. The second goal is to disentangle the positive aspects of professional independence from the self-serving, anticompetitive uses to which it has been put. Once it has been recast as an aspect of group identity, the notion of professional independence (and professionalism as a whole) can survive and help shape the massive changes facing the profession. Contrary to the American Bar Association’s conviction, the main threat to professional independence comes not from increased regulation or new structures for the delivery of legal services, but rather from proposals to segment the profession and legal education in ways that would erode that common identity and mission

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