Volume 59
Issue 1
Winter '22

The Imperial Prosecutor?

Written By: Brian Richardson

Abstract

Federal prosecutors’ authority in the U.S. legal system is imperial. When they act, prosecutors speak for the whole of the U.S. government across all policy-making domains. Ideally, their judgments, expressed in many thousands of retail investigative and prosecutive decisions each year, are meant to be insulated from the interests of other Executive Branch actors—even, on many accounts, from the White House. The relevant ideal is expressed not principally as an injunction against self-dealing or “political” influence, but rather as the far broader norm of prosecutorial independence. 

This Article describes and appraises a growing set of federal criminal prohibitions that predictably implicate national interests beyond the criminal law, such as national security, diplomatic, and economic interests. Crucially, the criminalization of activity in such policy domains, when paired with exclusive charging discretion for prosecutors, may yield divergent judgments within the Executive about whether the enforcement of criminal law serves the national interest. Yet prosecutors’ deliberative practices take place principally among prosecutors, using the distinctive grammar of ordinary, case-by-case law enforcement judgment. That grammar reflects a conscious selection to allow prosecutors a pro- criminal-enforcement free agency. Moreover, that grammar is, by design, insensitive to other modes of Executive decision-making. On a strong account of the independence norm, prosecutors’ judgment must win. 

Because enforcement choices in federal criminal cases are allocated to prose-cutors alone, this creates a “deliberative dilemma”: prosecutors wield a power that can affect the whole Executive’s interests, but they can act without transparent access to information about priorities beyond criminal law enforcement. This Article argues that we can choose strict prosecutorial independence or whole government deliberation about the national interest, but we cannot have both. 

Predictable pathologies ensue when the dilemma is not managed. The ideal of independence may give way way to ad-hoc accommodations that are sometimes feigned, sometimes tactical, but in any event sufficiently risky to recommend other models of Branch-wide prosecutorial decision-making. After unearthing these tensions, the Article concludes by exploring Branch-wide deliberative norms to manage them. 

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