Independent Prosecutors at the Founding
The problem of prosecutorial professional independence has existed since the first Congress created the United States Attorney position. Washington's practice provides insight for today's situation.
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Justice in Brief
In the Western District of Pennsylvania, a man was indicted for traveling to Lebanon for the purpose of joining Hizbollah, a designated foreign terrorist organization. He wanted to fight gainst Israel in Syria.
In the Southern District of New York, a Korean man was indicted for his role in a cryptocurrency scheme that resulted in investors losing $40 billion. The man laundered the money to cover up his involvement.
The Justice Department announced that it made the 10th and final payment to those victimized by the Bernie Madoff ponzi scheme. In sum, the Department returned $4.3 billion to the more than 40,000 victims. The money came from asset forfeiture cases pursued by the Department.
George Washington and independent prosecutors
Since the November presidential election, we have focused on the concept of prosecutorial independence and have seen its positives and negatives. Ultimately, there must be a balance between independent professional prosecutorial judgment and political and legal accountability. Where to draw this line poses challenges. Too much in either direction leads to the greater possibility of abuse. Under either circumstance, people are prosecuted for who they are rather than for what they did. People can disagree, however, about where the line between independence and accountability should be placed. Deciding its placement becomes a normative judgment. One way to determine where it should be drawn is to look at history. How have past presidential administrations drawn that line? Which should we choose?
A natural choice is the beginning: George Washington. More than any other President, Washington was keenly aware of the precedents he was establishing. He knew that future presidents would look to his decisions as the basis for their own. His presidency, especially as it relates to federal prosecution, is not a perfect comparison. The federal system was new and its structure and process bears only a small resemblance to today’s massive system and extensive process. The legal profession and legal practice was also different. The legal community was smaller and more generalized from today’s large and specialized legal business. Still, Washington’s practice can provide insight as the system’s smaller size allows us to see prosecutorial independence and accountability more clearly.
During the summer and fall of 1789, Washington selected people to represent the United States in what would become the federal district and circuit courts. As he did this, Congress was constructing the first Judiciary Act that would create a district court and a circuit court in each state. This gave people access to federal courts without the burden of traveling a great distance to the nation’s capital. It also meant the federal government was not left at the mercy of the state courts where those who opposed any federal government might be antagonistic to federal interests. Creating a federal court in each state, however, meant that someone would need to represent the United States before these courts. Congress created the United States Attorney, a “meet person, learned in the law” who would appear before the federal courts and represent the United States.
Washington did not just choose people randomly. He had certain criteria in mind. Most importantly, they had to support the newly created federal Constitution. While this seems strange today, at the time, it was a major concern. When it was debated among the states prior to its ratification, many strongly opposed the new Constitution. They believed it gave too much power to the federal government and failed to protect the people’s rights. Washington did not want those opponents representing the United States because they would not support the new federal government. Thus Washington created the first policy litmus test for appointees.
Nor did Washington make these selections independently. Though Washington knew many people throughout the nation, he was not familiar with each state’s legal community. He relied on recommendations from people he knew and who were familiar with the legal community in a particular state. Most often, the people Washington consulted were members of the first Congress. Congressmen (and they were all men) submitted names to Washington of people who they knew and who had expressed interest in the position. In most instances, Washington followed these recommendations. By doing this, Washington established another important precedent. Those selected had significant political connections but not necessarily with the President. This created both a means for accountability and a sense of independence.
When the federal courts opened in 1790, the newly appointed United States Attorneys handled the bulk of their criminal work independent of administrative oversight. This result, for the most part, simply from logistics. Located in New York, President Washington and his cabinet faced a significant communication lag. Correspondence took days to reach him from the more distant states. By the time communications reached Washington, he consulted his cabinet, crafted a response, and it reached the recipient, the time for action would pass. Thus individual United States Attorneys had to rely on their own legal judgment. Equally important was the fact that Washington could not possibly consider every criminal case. He did not have the time. Many other, more important, issues consumed his time.
Some of those issues did involve criminal prosecutions. In these matters, the Administration provided their attorneys instructions, expecting the attorneys to implement them. One of the earliest examples occurred in 1792, soon after Treasury Secretary Alexander Hamilton secured passage of the Whiskey Tax. Protest erupted in western Pennsylvania. When word reached the Administration, Hamilton solicited Attorney General Edmund Randolph’s opinion regarding whether the protests were criminal and prosecutable. When Randolph opined they were not, Hamilton went to Washington, who concurred with Hamilton’s view. Washington, through Randolph, instructed United States District Attorney for Pennsylvania William Rawle to initiate prosecutions against two people. To be sure Rawle did this, Washington instructed Randolph to attend the court proceedings. Several months later, after one court appearance, Washington ordered the cases dismissed. Apparently, the government prosecuted the wrong people.
In the Rawle example, the Administration could easily assert control. At the time, the nation’s capital was in Philadelphia. This meant Washington, Hamilton, Randolph, and Rawle were in the same location. Randolph could attend court and oversee Rawle directly. Had Rawle not followed the instructions, Randolph could assert himself. The question is how. The Judiciary Act only gave Randolph authority over cases in the United States Supreme Court. He had no authority to represent the government in the circuit court, only Rawle, as United States District Attorney, had that authority. Had Rawle not followed the Administration’s instructions, could the Administration remove him?
Whether the Administration could remove a United States District Attorney who did not follow instructions was an open question. At the same time people protested the whiskey tax, the Washington Administration dealt with an external security threat. France and Great Britain were at war and people in the United States divided their support. Both countries sought to take advantage of this despite the United States officially remaining neutral. France, for its part, recruited American sailors and purchased armaments. To enforce its neutrality, the United States placed an embargo on goods sold to the warring powers. In Charleston, South Carolina, a French stronghold, residents ignored the embargo and sold armaments to France. When complaints reached United States Attorney for South Carolina Thomas Parker he interpeted the embargo to only prevent offensive armaments rather than defensive. Parker’s interpretation reached Hamilton who rejected the interpretation. Hamilton saw no difference between offensive and defensive armaments as any armament could be used for either purpose. Parker’s unique interpretation created foreign policy problems when one vessel left Charleston but was forced by weather into Norfolk. It was not permitted to leave Norfolk due to its armaments. This led to an official French protest. Despite Parker’s seeming disregard for official policy, the Administration did not remove him. This suggests, at minimum, a tolerance for dissenting legal interpretations.
Ultimately, the original federal prosecutors operated with a great deal of independence. They represented the government and were permitted to exercise professional discretion. At times, the administration sent instructions but lacked any mechanism to enforce compliance. The United States District Attorneys acted on their own accord. Importantly, however, none abused this authority. If they erred, they erred on the side of not prosecuting cases. This provides a solid example of how federal prosecutors should act today.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!