Introduction

Donald Trump will be the next President of the United States. While campaigning, he vowed that if he won, he would instruct the Department of Justice to prosecute his political opponents.[1] His shortlist of targets includes Vice President Kamala Harris, President Joe Biden and his family, and former United States Representative Liz Cheney.[2] If he intends to keep that promise, he will need the help of prosecutors in the Justice Department. Those prosecutors swear oaths to “support and defend the Constitution”[3] and faithfully execute their duties.[4] But what does it mean to faithfully execute your duty as a federal prosecutor when the President orders you to prosecute someone on purely political grounds?

Norms as the Rule of Law

Justice Robert H. Jackson condemned this exact conduct in his timeless address, “The Federal Prosecutor.” In that speech, then Attorney General Jackson remarked on the immense power federal prosecutors hold, going so far as to say they have “more control over life, liberty, and reputation than any other person in America.”[5] He viewed the greatest misuse of that power as prosecuting someone for personal reasons[6]—that is, a prosecutor selecting a person for prosecution and only then looking for a crime. This understanding of the role of a federal prosecutor has since been formalized in the Justice Manual.

The Justice Manual, which sets out the principles of federal prosecution, is the controlling document for the Justice Department’s policies and procedures.[7]   According to the Justice Manual, the irreducible minimum requirement for commencing federal prosecution is that the prosecutor “believes that the person’s conduct constitutes a federal offence, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.”[8] That means the prosecutor must believe that the prosecution is more likely than not to result in a conviction that will be sustained upon appeal. The Justice Manual also specifically prohibits the consideration of political association, activities, or beliefs in the decision to commence prosecution.[9]

So, at first blush, the answer seems obvious: federal prosecutors cannot initiate political prosecutions. But the Justice Manual is not legally binding, and it does not create legal rights.[10] What it does is establish norms of prosecutorial procedure intended to ensure that federal prosecutions are free from improper motives and influences. The ultimate goal is that like cases are treated alike and that prosecutions are only brought if they are in the interest of justice. These norms are a critical part of the United States’ rule of law. They also run headlong into the Supreme Court’s decision in Trump v. United States.

Presidential Authority Over Prosecutorial Discretion

In Trump v. United States, the Supreme Court held that the President “may not be prosecuted for exercising his core constitutional powers.”[11] The Court further held that conversations between the President and the Justice Department are within the President’s exclusive constitutional authority.[12] Even “sham” or “improper” investigations that the President orders in these conversations fall within the President’s exclusive authority.[13] As such, the President is absolutely immune from prosecution for any directions he gives in those discussions. The immunity extends all the way to his discretion to fire an Attorney General who does not follow his wishes.[14] This bumps up against the norms in the Justice Manual and means that the President has the authority to instruct the Department of Justice to investigate and prosecute anyone he wishes and, if they decline, to fire them.

The potential for abuse that presidential immunity permits is compounded by prosecutorial immunity. Like the President, prosecutors enjoy absolute immunity for initiating and pursuing criminal prosecution.[15] And lower courts have held that prosecutors are absolutely immune even for initiating bad faith investigations based solely on illegitimate political motivations.[16] The upshot of these two immunity doctrines is that the President can order a federal prosecutor to investigate someone on purely political grounds, the federal prosecutor can initiate those investigations, and neither can be held criminally accountable.

The fact that these prosecutions are unlikely to lead to a conviction does not alleviate the problem. Defendants must endure other consequences, such as reputational or professional harm. Take a hypothetical university professor as an example. If the President instructs them to, the Department of Justice may have the authority to investigate that professor and issue a grand jury subpoena, even if doing so goes against the norms in the Justice Manual. But if someone leaks the fact that the professor is under investigation to the public, that professor may have to resign. Even if the professor does not resign, the university must decide if they want to keep someone on staff who is under investigation. The professor faces potential professional ruin, and they will never have had a trial. That is exactly the outcome that Due Process and the norms in the Justice Manual are supposed to protect against.

The Ethical Dilemma Prosecutors Face

In this legal landscape, federal prosecutors face an impossible ethical dilemma. They must choose between following the Justice Manual and their oaths of office or obeying the orders of their superiors. If they choose the first path, their only options are to resign or voice their objections and likely be fired. If they choose the latter, they are stuck violating the Justice Manual and the norms that embody it. They will be absolutely immune, but they will have failed to live up to the lofty ideal of a federal prosecutor that Justice Jackson portrayed.

It is not clear where the ethical obligations of a federal prosecutor begin and end under the authority of a President to order investigations and the authority of prosecutors to conduct them. That leaves prosecutors who think the President’s instructions violate their oath of office with little option other than to resign or be fired. But there will be people who will not resign or object—people who will carry out those instructions and wield both the enormous power that is prosecutorial discretion and the immunity that accompanies it. We’re at an intersection where the rule of law by and large consists of norms that people respect. When you decide not to respect those norms, you have not only put a federal prosecutor in an impossible ethical position—you have also undercut the rule of law.

 

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[1]  Tom Dreisbach, Trump has made more than 100 threats to prosecute or punish perceived enemies, NPR (Oct. 22, 2024), https://www.npr.org/2024/10/21/nx-s1-5134924/trump-election-2024-kamala-harris-elizabeth-cheney-threat-civil-liberties.

[2]  Id.

[3]  5 U.S.C. § 3331.

[4]  28 U.S.C. § 544.

[5]  Attorney General Robert H. Jackson, “The Federal Prosecutor”, (April 1, 1940).  Available online at https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf (last visited Nov. 18, 2024).

[6]  Id.

[7]  U.S. Dep’t of Justice, Justice Manual, § 1-1.100, (March 2024).

[8]  U.S. Dep’t of Justice, Justice Manual, § 9-27.220, (June 2023).

[9]  U.S. Dep’t of Justice, Justice Manual, § 9-27.260, (June 2023).

[10]  U.S. Dep’t of Justice, Justice Manual, § 1-1.200, (March 2024).

[11]  Trump v. United States, 603 U.S. 593, 642 (2024).

[12]  Id. at 621.

[13]  Id.

[14]  Id. at 620–21.

[15]  Imbler v. Pachtman, 424 U.S. 409 (1976).

[16]  See Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004); Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992).