In our constitutional system of checks and balances, ambition counteracts ambition. But what happens when prosecutors are the most ambitious of all? Last month, Justice Samuel Alito raised this question in the opinion that he issued on the Supreme Court’s closing day of regular business this session, in the case of Trump v. Vance. A seven-justice majority had rejected President Trump’s claims of total immunity against subpoenas from Manhattan district attorney Cy Vance, and Justice Alito—himself a former federal prosecutor—warned that his colleagues were courting constitutional disaster:
There are more than 2,300 local prosecutors and district attorneys in the country. Many local prosecutors are elected, and many prosecutors have ambitions for higher elected office. . . . If a sitting President is unpopular in a particular district—and that is a common condition—targeting the President may be an alluring and effective electoral strategy.
Of course, there are many kinds of prosecutorial ambition. Some might be ambitious for lucrative law-firm partnership seats, or judicial appointments; others might simply like sending a message to criminals that they are the toughest guy on the block. And others—surely the vast majority—are simply ambitious to do the best possible job they can, using all the legal tools at their disposal.
But here is the problem: there are many tools—and few practical limits upon their use. While a prosecutor can’t put a defendant in jail without a judge, or a jury, or the defendant’s own guilty plea, there remains much that he or she can do to secure such convictions or plea bargains, or at least to make the defendant feel the pain of the criminal process.
Judge Jed Rakoff warned of this six years ago in “Why Innocent People Plead Guilty,” a widely read essay for the New York Review of Books. Rakoff, one of the nation’s leading judicial thinkers on the left and himself a former federal prosecutor, observed that federal sentencing guidelines and statutory mandatory-minimum sentences “provide prosecutors with weapons to bludgeon defendants into effective coerced plea bargains.” Moreover, he added, the prosecutor “can effectively dictate the sentence by how he publicly describes the offense.” That is, if the defendant does not accept a privately negotiated deal to plead guilty to a relatively low offense, perhaps with no jail time, the prosecutor will take him to court with much more significant criminal charges that could bring about years in prison. “Put another way,” Rakoff concludes, “it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked in the charged decision.”
Rakoff might have added that the prosecutor’s immense advantage in a court of law is dwarfed by his still greater advantages in the court of public opinion. A prosecutor can destroy a defendant’s reputation, family life, and career prospects with a single press conference—or with one of the on-camera “perp walks” that Rudy Giuliani pioneered as a federal prosecutor in Manhattan, which raised questions of due process and fundamental fairness.
Rakoff’s warnings echoed a speech that Attorney General Robert Jackson delivered in April 1940 to a conference of federal prosecutors. In that speech, perhaps the most famous in the Justice Department’s 150-year history, the future Supreme Court Justice called his audience of U.S. Attorneys “one of the most powerful peace-time forces known to our country”:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial.
Jackson warned that the prosecutor’s power and discretion—and thus the need for restraint, and for self-restraint—would be at its zenith during times of political warfare. “In times of fear or hysteria,” he warned, “political, racial, religious, social and economic groups” will “cry for the scalps of individuals or groups because they do not like their views.” Such cries for prosecutorial vengeance would come not just from the worst of motives, but also “often from the best.” And so, he concluded, the rule of law and the public interest would depend upon “the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
Jackson’s remarks came to mind in the last few weeks, as the power of prosecution and the dangers of its politicization returned to the headlines. In early May, the Justice Department concluded a three-month internal investigation into the DOJ’s and FBI’s handling of the investigation into former National Security Advisor Michael Flynn, who had pleaded guilty in late 2017 to charges of lying to investigators about the details of a December 2016 phone conversation with Russian ambassador Sergey Kislyak. Flynn’s plea bargain occurred under the shadow of leaked reports that the DOJ could indict his son, too. But before proceedings concluded in the trial court, Flynn complained that he had been treated unfairly by prosecutors. In May 2020, the Justice Department finally agreed, filing a motion to erase Flynn’s guilty plea and dismiss the charges because the department concluded that it could no longer prove beyond a reasonable doubt that any false statement he made was material to a legitimate FBI investigation.
As Eli Lake detailed in a thorough article for Commentary, the now-public record does raise significant questions about whether the investigators who questioned him during the January 2017 interview at which Flynn allegedly lied, and the broader FBI investigation itself, had mistreated Flynn. Flynn’s critics replied, in turn, that the investigation was warranted from the start; that his statement to investigators that he had not discussed sanctions on the phone with Kislyak was not merely mistaken but an intentional lie; and that the department could not plausibly disclaim an ability to prove Flynn’s guilt beyond a reasonable doubt when Flynn himself had already admitted guilt in his plea bargain. (Whatever one thinks of the first two of those points, critics making the third point ought to read Rakoff’s essay.)
Upon receipt of the Justice Department’s motion to dismiss the case, Judge Emmet Sullivan undertook an astonishing assertion of control over the DOJ’s prosecution, inviting a retired federal judge and the public at large to make arguments in favor of completing the prosecution that the prosecutor itself no longer stood behind. The U.S. Court of Appeals for the D.C. Circuit promptly heard arguments on Flynn’s petition to block Sullivan’s proceedings; in June, it issued a decision preventing Sullivan’s radical intervention.
As the D.C. Circuit explained, Judge Sullivan had confused his own narrow authority for the Justice Department’s very different responsibility. While a judge hearing such a motion to dismiss the case after a guilty plea should be on the watch for “extraordinary” cases of “harassment of the defendant or malfeasance such as bribery,” in the absence of such evidence the decision to drop a prosecution rests solely in the hands of the prosecutors—and for good reason. The Justice Department, exercising a part of the Constitution’s executive power on behalf of the elected president, must have total discretion to end a prosecution “in the interest of justice” when “evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation.” Judge Sullivan’s proceedings were geared toward scrutinizing and second-guessing prudential and legal judgments committed to the prosecutor’s broad discretion. For that reason, the D.C. Circuit stopped the process before it could go any farther. Sullivan has appealed to the Supreme Court to vacate the D.C. Circuit’s decision, but barring further developments, the Flynn case is over.
Supporters of Flynn—and President Trump—celebrated the D.C. Circuit’s ruling. And it no doubt gave them a great victory. But it also vindicated one of the core arguments that President Trump’s critics have made from 2015 onward: namely, that it is impossible in presidential politics to separate character from policy. The Flynn case—from its origins in the Obama administration to its evident conclusion in the Trump administration—reminds us that immensely consequential matters are committed to the nonpublic discretion of Justice Department officials who answer to the president and his political appointees.
Indeed, that’s why Alexander Hamilton predicted—or at least hoped—that the Constitution’s framework for electing the president and appointing his administration’s chief officers would screen out unfit characters. The Electoral College was needed to ensure that the presidency would be entrusted to “characters pre-eminent for ability and virtue,” and the Senate’s power to confirm or reject officer appointments was needed to ensure that a president would not simply fill high offices with men who would be little more than “obsequious instruments of his pleasure.” The Constitution’s framework for filling these offices is important precisely because the offices themselves, including the Attorney General and U.S. Attorneys, are so powerful. The power and discretion committed to those offices also justifies the public’s instinctual recoil from any signs of partisanship or politicization in a prosecutor’s office.
To that end, on June 24, the same day that the D.C. Circuit issued its decision in the Flynn dismissal case, the House Judiciary Committee held a hearing on “Political Interference and Threats to Prosecutorial Independence.” News coverage of the hearing was dominated by the testimony of former assistant U.S. Attorney Aaron Zelinsky, part of the Justice Department team that prosecuted Roger Stone. Zelinsky told the congressmen about a rumor that the lead prosecutor “was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break,” though Zelinsky could not directly confirm these vague rumors himself. At the same hearing, former Attorney General and federal judge Michael Mukasey also testified, denouncing the FBI’s reported treatment of Flynn, including the threat to prosecute Flynn’s son, and supporting Attorney General William Barr’s leadership. Judge Mukasey fully supported the Justice Department’s decision to dismiss the Flynn case: “the duty of the Department is to do justice, and that does not end after a guilty plea,” especially upon “the disclosure of new information that shows continued prosecution would be a miscarriage of justice.” For all their disagreements, both Mukasey and Zelinsky—and all other participants at the hearing—denounced politicization of the prosecutorial process. They simply disagreed about who was politicizing it.
But just as surely we criticize prosecutorial politicization, that politicization will continue, at the federal and state level alike. Recent U.S. attorneys general, including Eric Holder and Barr, could not resist the urge to deliver passionate speeches that, whatever their merits, undermined their ability to present themselves as nonpartisan administrators of justice. Surely their successors will not resist that urge, either.
Moreover, Congress itself plays a major part in the politicization of federal prosecution, by using hearings to try to leverage information gained by prosecutors—as we saw most recently by congressional Democrats’ attempts to turn the Justice Department’s internal “special counsel” investigation, led by Robert Mueller, into a fact-finding mission for Congress’s own political ends.
Meanwhile, at the state and local level, Justice Alito’s worries about politicized prosecutors are more than justified in light of energetic political campaigns to win district-attorney offices for nakedly political ends, as former federal prosecutor Andrew McCarthy recently detailed in an essay for Commentary titled “The Progressive Prosecutor Project.”
But the worst and most corrosive politicization of prosecutorial power now happens in our presidential campaigns. In 2016, Trump told his opponent Hillary Clinton, on the presidential debate stage, that in a Trump administration, “you’d be in jail,” and at campaign rallies he encouraged cheers of “Lock Her Up.” (Michael Flynn, ironically, led a few of those cheers himself.) Trump is not the last presidential candidate to do it. While Joe Biden so far has sidestepped calls to investigate the administration by saying that he would defer to the Justice Department, the DOJ might well be run by former presidential candidates Kamala Harris or Elizabeth Warren, both of whom tried to win political support among Democrats with talk of prosecuting and locking up Trump.
In short, just as there is broad bipartisan agreement that politicization of prosecution is terrible, there is also broad bipartisan agreement that one’s opponents need to be locked up for their terrible crimes.
Months after asserting that Trump needs to be put “in handcuffs and indicted,” Warren released an official policy plan for the Justice Department to go after him. “If we are to move forward to restore public confidence in government and deter future wrongdoing,” she declared, “we cannot simply sweep this corruption under the rug in a new administration.”
Warren is not the first to believe that national reconciliation depends on investigating and prosecuting a prior presidential administration. Conservatives and progressives alike have made similar calls for a lock-them-up approach to national unity.
They call to mind, again, Attorney Jackson’s famous speech on the dangers inherent in prosecutorial power. For as Jackson warned, prosecutorial power is dangerous not only when the prosecutor “acts from malice or other base motives,” but also when prosecutors or their supporters believe that they are acting from the best of motives: that is, when “in times of fear or hysteria,” they demand “the scalps of individuals or groups because they do not like their views.”
Of course, no one will ever admit—or even believe—that he wants to see his political opponents handcuffed merely because he dislikes their views; he only wants justice, he’ll insist, and his opponents happen to be criminals, or should at least be investigated for any crimes they may have committed. And for the same reason, supporters of the prosecuted partisan will have a hard time believing that.
There is only one way out of this, and it is not vengeance but self-restraint. National unity in support of the rule of law will be impossible until a president commits to holding his own administration and friends to high ethical and legal standards while granting a measure of self-restraint when applying the law to the other party. The Constitution will never be threatened by partisans being too lenient to their opponents and too aggressive toward themselves. We face the opposite problem.
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