Rogue Prosecutors?
In the recent Supreme Court oral arguments on former President Donald Trump's immunity claims, several Justices expressed concerns about prosecutors abusing their discretion. What did they mean?
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Justice in Brief
*In the Southern District of Texas, a Democratic member of the US House of Representatives was charged with accepting over $600,000 from a Mexican bank and an oil company owned by Azerbaijan in exchange for use of his legislative influence to benefit the companies.
*In the District of Puerto Rico, more than 60 gang members were arrested in connection with a massive drug distribution scheme that included cocaine base (commonly known as crack), heroin, cocaine, marijuana, Oxycodone (commonly known as Percocet), Alprazolam (commonly known as Xanax), Clonazepam (commonly known as Klonopin), and Tramadol.
*In the Eastern District of Pennsylvania an engineer for a defense contractor entered a guilty plea to disclosing national defense information to those unauthorized to receive it. He was initially arrested after disclosing information to an undercover FBI agent posing as a Russian government official. Once confined, he disclosed the information to friends and family.
The Threat of Rogue Prosecutors
On April 25, the US Supreme Court heard oral arguments on former President Donald Trump’s argument that he is immune from criminal prosecution for all offical acts undertaken while President of the United States. One argument former President Trump raised was that incoming President could target former Presidents for criminal prosecution when the incoming and former Presidents are of different political parties. Despite this being the first time it has happened in 22 presidential party changes, the Supreme Court took the argument seriously. They questioned the special prosecutor’s counsel about the presumption of prosecutors acting in good faith. While some agree with this concern, others might be surprised and question the premise. Regardless, it forces consideration of which prosecutors do not act in good faith and what does it look like when they do not. The next few issues will answer these questions but first, we must identify the concerns.
One term sometimes used for prosecutors who act outside the norm is “rogue.” Merriam-Webster’s dictionary defines the adjective “rogue” as corrupt or dishonest. The Oxford English dictionary defines “rogue” as someone who acts in an unexpected or abnormal way such that harm results. Recently, those opposed to progressive prosecutors in state prosecutor offices have used the term to describe those elected who wish to change the traditional prosecutorial function. They argue that when prosecutors put the interests of defendants ahead of those harmed, the prosecutors do greater harm to society. Yet those prosecutors would assert they are acting in a principled fashion and are the exact opposite of rogue. In a similar manner, when the Supreme Court questioned whether future prosecutors might act from malice when determining whether to prosecute a former president, several journalists interpreted the Court to mean the prosecutors were rogue.
During the argument, Chief Justice Roberts initiated the discussion about prosecutors. He asked the Special Counsel’s counsel, prolific Supreme Court advocate Michael Dreeben, whether the D.C. Circuit’s reasoning that a president may be prosecuted because the prosecutor secured an indictment was tautological (meaning that it was saying the same thing twice). When Dreedben agreed, Roberts had his opening. Roberts summarized that the D.C. Circuit justified its conclusion on the grounds that no one need worry about future presidents because “the prosecutor will act in good faith and there's no reason to worry because a grand jury will have returned the indictment.” (transcript, p74) Dreeben attempted to reassure the Court that prosecutorial good faith was only one of the factors to consider.
We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution under Wayte versus United States. It's not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath. … I don't want to overstate Your Honor's concern with potentially relying solely on good faith, but that's an ingredient. And then the courts stand ready to adjudicate motions based on selective prosecution, political animus.
Justice Alito picked up the inquiry later during Dreeben’s oral argument by asking Dreeden about the layers of protection that would prevent former presidents from being inappropriately targeted. Alito asserted that Justice Department attorneys provide the first layer of protection. Dreeben agreed and tried to focus attention on the Trump case. Alito was more concerned with the abstract. He noted that two attorneys general had been prosecuted and, at least one other, had abused power.1 Dreeben correctly responded that in the entire history of federal prosecution, this was a very small number. He also emphasized the multiple layers of protection within the Department itself. Dreeben then cited former President Trump’s effforts to use the Department to advance his fraud argument but the Department’s integrity withstood the effort.
Later in the argument, Justice Kavanaugh compared the case against former President Trump to the Independent Counsels who invesitgated Presidents Reagan, George H.W. Bush, and Clinton. Specifically, he argued that the independent prosecutions interfered with each person’s presidency. With this argument, Kavanaugh implied that some form of immunity was necessary to insulate presidents from being targeted. Dreeben drew the key distinction between those cases and the Trump case. In the present situation, the Attorney General has control over the special counsel, a mechanism lacking under the Independent Counsel statute.
Near the end of oral argument, Justice Jackson also raised the issue but from a different perspective. She assumed presidential control over federal prosecutors but asserted that sitting presidents would be less likely to prosecute their predecessors because, at some point in the future, the sitting president will be a former president and would not want to suffer the same fate. Thus, only truly meritorious prosecutions would occur.
The Court’s concerns lead to the origin of these concerns. Why is the Court worried about rogue prosecutors. One theory posits this the concern arises from fears of the “Deep State.” Many believe that the bureaucracy is undermining efforts at government reform. That includes those in the Justice Department. Those concerns appeared in the undertones of former Attorney General Bill Barr’s speech to Hillsdale College when he argued that line prosecutors had too much control over prosecutorial discretion.
While this is an obvious explanation, it overlooks three interrelated, long-standing, and ideological-bridging explanations. The first is the indpendence of prosecutors from the executive. Each side tends to accuse the other of using the Justice Department for its own political ends. The clear endpoint of this tit-for-tat game is that the president uses the Justice Department to target its political rivals. It would not be difficult for investigators to find some law that some president violated while it office or upon leaving. The investigation of President Biden’s document retention illustrates this.
Second, it overlooks the constant question of how to investigate wrongdoing by members of the executive branch. As the last several issues reveal, special counsels are used in cases where the Justice Department has a conflict of interest. Usually, the appointed special counsels belong to the same political party as those not in the government positions. Hence both the Hunter and Joe Biden special counsels were Republicans. In the Trump investigation, the Justice Department handled it until he announced he was seeking the 2024 Republican presidential nomination. As he would opposed President Biden in the upcoming election, this created the appearance—or the temptation—of impropriety. As the previous discussion on special counsels demonstrates, they do not eliminate, or even ameliorate, the risk of political calculations.
Third, the deep state theory overlooks an important cross-ideological series of cases that interpret criminal statutes narrowly. Across a spectrum of criminal statutes, federal prosecutors have adopted novel and broad theories to support prosecutions. When rejecting these novel theories, the Supreme Court has expressed concerns about prosecutorial discretion. In their arguments to the court, federal prosecutors assert that they can be trusted to only use the broad theories in appropriate cases. The Supreme Court has, in unanimous decisions rejected this argument.
These three explanations do not disprove the deep state theory but do provide alternatives. Until the Court renders its decision, we will not know how the Court resolves its concerns about “rogue” prosecutors. As the series progresses, we will look at some examples of potentially “rogue” prosecutors in an effort to determine if the Court’s concern is justified.
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!
Justice Briefs is a weekly newsletter focusing on federal criminal prosecution. All opinions expressed belong to the author and are not necessarily those of any past or present employer. If you would like to read about the origins of federal criminal prosecution, you can get a copy of my book here: Constitutional Inquisitors: The Origins and Practice of Early Federal Prosecutors
Alito identified Mitchall Palmer, President Woodrow Wilson’s third Attorney General. Interestingly, Palmer’s successor, Harry Daugherty, Harding’s first Attorney General was the first prosecuted. Alito omitted George Williams, President Grant’s third Attorney General who misappropriated $1000s from the Justice Department. Of the four “rogue” attorneys general, three (Williams, Daugherty, and Nixon’s first attorney general, John Mitchell) were Republican. Palmer was the only Democrat.