Dept of Justice Independence

Is it a constitutional requirement that prosecutorial & investigative decisions be independent of political influence?

  • Framers’ understanding?
  • Congress-imposed constraint on “administration”?
  • An informal rule / understanding / norm? How to ascertain existence & boundaries
  • Should there be such independence?
  • How have such restrictions be formally institutionalized?
  • How should such restrictions be formally institutionalized?


Constitutional principles

Administrative vs. executive

If we believe Lessig-Sunstein: a matter of administrative function—up to Congress to regulate or delegate.

Sometimes, entanglement with enumerated executive powers—e. g. foreign policy

A judge in one's own case?

Prohibition of this has been a common maxim since before the Framing.

Prosecution as a quasi-judicial function (Humphrey's Executor)

Problem when presidents, principal officers, and their political allies are subject to investigation or prosecution (--> special counsel)

Lloyd Cutler comment during hearings on Ervin bill, 1974: it makes little sense to “tolerate conflicts of interest on the part of the President, the Attorney General and their immediate assistants that we cannot and do not tolerate in ordinary judges and lawyers” (G&R p72)

Common arguments for general presidential supervision of prosecution

As summarized by G&R (sec. I.D.):
  • Presidential control: implied by pres. authority to fire AG & others (Jacksonian arg.)
  • Pardon power: supposedly indicates the general kind of authority the framers envisioned for Pres. over prosecution (or was it stated because it was an exception to the more general rule?)
  • Necessity: the president’s enumerated executive powers necessitates his ability to control prosecution when it interferes

Independence necessary for legitimacy?

Reasoning since the New Deal period:

  • In the modern, large administrative state, democratic legitimacy requires
    • maintaining accountability (vs. out-of-touch bureaucracy)
      • through political responsiveness to both president and Congress
      • through control by unitary president?
      • judicial review of agency decisions vs. statute
    • independence from faction (including "capture" by organized interests)
      • danger from patronage or otherwise too-tight political control
  • "Prosecutiorial independence developied as a central norm during this period" (G&R’s conclusion, p74)
  • Reliance on “professional independence as a fundamental check on presidential power” (p74).


Evidence of a norm of prosecutorial independence

Longstanding historical practice: most of the time, most US Attys make decisions autonomously.

The Judiciary Act of 1789

  • Early drafts had AG and US Attys appointed by the courts—part of the judicial branch; final version didn't specify who appointed AG
  • Lack of any supervisory principal officer over US Attys
  • Requirement that US Attys be persons “learned in the law”; to apply law as distinct from politics (at the time, not believed problematic)

Indications of 19th-century thought

  • Comments of prominent AGs pre-Civil War: Wirt, Crittenden; even Taney thought AG opinion should be a constraint on President
  • Norms of professionalization and goal of insulating professional decisions from politics behind formation of DoJ (1870)

20th century constitutional development

  • Humphrey’s Executor (1935) (surely quasi-judicial includes prosecution)
  • New Deal more generally: despite new needs for policy coordination, the working out of how to achieve consistency and justice was often thought best left to legal professionals
    • “Process School” legal theory of H.L.A. Hart & others
  • Post-Watergate reactions and reforms: showed vulnerability of lawyers in govt to political influence; widely agreed need for safeguards
    • note Ervin bill to make DoJ an independent agency
    • Independent Counsel law
    • Morrison v. Olson (1988)

Aftermath of 2006 US Atty firings: bipartisan criticism, AG forced to resign

2017-18 appointment of Mueller as Special Counsel to investigate Russia electoral interference and any connection to the presidential campaigns or administration


Evidence that presidential control of prosecution has been accepted

Early republic

  • Washington orders to indict/drop prosecution of some in Whiskey Rebellion
  • Sedition Act prosecutions
    • ordered by Adams
    • ordered dismissed by Jefferson
  • Jefferson forbade prosecutions for seditious libel
  • Jefferson active in Burr treason prosecution

Jacksonian era

  • 1830 creation of Solicitor of the Treasury, with supervisory power over US Attys, Marshals, and Clerks of Court on debt-collection actions.
  • Taney both as AG and as Treasury Sec. responded to & defended Jackson’s policy supervision

Civil War and Progressive Era

  • More active policy coordination over USAttys from Washington during and after Civil War
  • AG given supervisory position vs. US Attys when DoJ founded (1870)
  • T. Rooevelt & Taft active in pushing anti-trust prosecutions


Relations between US Attorneys and Main Justice

Local vs. central control of prosecution: tradeoffs

US Attorney Offices

  • 93, one for each US District Court (2 in Pacific share a single USAO
  • enormous variation in size
  • 5000-6000 Assistant US Attys overall

Main justice

Advantages of local autonomy

  • Varying local conditions: competence of local non-DoJ officials, local attitudes toward “victimless” (etc.) crime. USAs have local knowledge
  • In criminal law, USAs are “generalists” whereas main justice attys tend to be subject area specialists
  • Need to insulate against central wrongdoing such as partisan schemes

Supervision by Main Justice

  • DoJ maintains standard operating procedures for every conceivable prosecutorial or related decision, in the Justice Manual (formerly the "USAM")
    • Contrary to my earlier remark, the regulations for Special Counsel are found in Title 28 of the Code of Federal Regulations (CFR), Chapter VI "Offices of Independent Counsel, Department Of Justice" (28 CFR 600).
  • The Executive Office for the US Attorneys is a management and support structure (since 1953) for all the US Attorney Offices.
    • Within the organizational chart of DoJ, the EUOUSA is located on the second "branch" from the right (along with the USAOs themselves).
  • Guidance on major cases & controversial issues
  • More active role in prosecution under new statutes
  • Provide attorneys with special skills (such as for tax cases)
  • Monitor for compliance & consistency
  • Example: criminal prosecution

“Interrelated developments since the early 1970s” promoting USAO autonomy

  • Growth in numbers of AUSAs (partly due to “federalization of criminal justice”); more very large USAOs [Eisenstein mentions 70 AUSAs in SDNY; today SDNY has 220 AUSAs, DC 330 AUSAs]
  • Professionalization since early 1970s: quasi-civil service, higher pay -> career AUSAs with expertise & experience comparable to Main
    • General extension of civil service-type protections under the Civil Service Reform Act of 1978 (Pub. L. No. 95-454, 92 Stat. 1111 (codified and later amended in 5 U.S.C. Chapter 75)
    • a 2002 Merit Systems Protection Board ruling Hamlett v. DoJ determined that these protections apply to AUSAs.
  • development of AUSA network (multiple boards, conferences, etc.), facilitating interaction and independence
  • AG’s Advisory Cmte (AGAC) of U.S. Attorneys (est 1973) provided new communication channel between USAOs and Main

Developments promoting Main Justice control

  • more partisanship in hiring (under GWB)
  • diminished deference to Senate—centralization of appts in WH
  • more assertiveness from Main
  • 9/11 attacks provided new impetus and political incentive for centralization (and emphasis) of anti-terrorism investigations.
  • Federal Sentencing Guidelines (1987), USAs instructed by the “Thornburgh Memo” to charge “most serious provable offense” to reduce implementation differences among districts. Under GWB/Ashcroft, Main also asserted control over all decisions about seeking death penalty.
  • Tying allocation of new AUSA positions (in 2nd GWB term) to USAO’s prosecution of particular crimes emphasized by the administration: child pornography, gun crimes, immigration, drugs.
  • Main began requiring numerous statistical reports from USAOs.