Separation of Prosecutors.

• Author: Arffa, Leslie B.

NOTE CONTENTS INTRODUCTION 1080 I. FROM DISARRAY TO A DEPARTMENT OF JUSTICE 1086 A. Dispersion: Federal Criminal Law at the Founding 1086 B. Congressional Centralization: The Creation of the 1091 Department of Justice C. Into the Modern Era 1094 II. PRESENT-DAY PROSECUTORS: THE EXECUTIVE STRIKES BACK? 1098 A. U.S. Attorney Selection and Removal 1098 B. Directives from Main Justice 1102 C. A New Direction? 1109 D. Contributing Forces 1112 III. THE BENEFITS AND PERILS OF DECENTRALIZATION 1115 A. Dispersion as a Means of Checking Presidential Power 1116 B. Dispersion as a Means of Facilitating Local 1119 Participation C. The Perils of Decentralization 1124 D. Implications 1127 CONCLUSION 1129 INTRODUCTION

Once an almost trivial aspect of the federal government's role, federal criminal prosecution has now taken center stage, serving as the subject of constant controversy. (1) It should come as no surprise that questions regarding the direction of federal criminal law have grown. (2) There have never been more federal criminal laws on the books (3) or more prosecutors enforcing those statutes. (4) Times of potential transition present unique opportunities for talking stock. Given that the role of federal prosecutors within the American political system continues to grow more contentious, it is more important than ever to understand the legal and political dynamics that have contributed to the system's present form. (5)

Despite the staggering expansion of federal criminal law over the last half century, (6) authority within federal law enforcement has remained remarkably dispersed. Since the Founding, federal prosecutors, armed with extraordinarily broad statutory authority, have been scattered throughout the country. (7) While formally operating within the executive-branch chain of command, these prosecutors today work in almost one hundred U.S. Attorneys' Offices (USAOs), each led by a presidential appointee with his or her own local power base. (8)

The dispersed nature of our system of federal law enforcement comes as a surprise given that the rest of our administrative apparatus has undergone far more dramatic centralization. (9) This structural anomaly remains of great practical import. As James Q. Wilson reminds us, "Organization matters.... The key difference between more and less successful bureaucracies... has less to do with finances, client populations, or legal arrangements than with organizational systems." (10) In 2017, U.S. Attorneys, operating with a great deal of autonomy, pursued pending cases against more than 100,000 criminal defendants. (11) These low-visibility prosecutorial decisions collectively form much of our public policy surrounding criminal law and enforcement. (12)

Rather than trying to explain how we got here, however, legal scholarship "takes the modern prosecutor's office as a given, a dragon that we find living in our midst and wish to tame." (13) As this language indicates, many consider the concentration of power in the hands of prosecutors--from the federal to the local--to be the "overriding evil" of American criminal justice. (14) Some have gone so far as to label federal criminal law specifically the domain of "prosecutorial administration," the consequences of which "should concern anyone interested in a rational criminal justice regime." (15) Given the large body of criticism, the lack of attention to the forces behind the dispersed nature of federal law enforcement seems glaring.

This Note draws on history and contemporary practice to offer a novel explanation and defense of the current decentralized structure of federal law enforcement. Many scholars frame proposals for limiting prosecutorial power as ways to compensate for congressional "abdication." (16) This Note reveals, however, that the structure of federal criminal law is the result not of abdication but rather of confrontation: a centuries-long tug-of-war between Congress and the Executive for control over the Justice Department. Since the Founding, members of Congress have battled with the President over the proper allocation of prosecutorial autonomy within the executive branch, regardless of whether they were aligned with the President's political party or not. (17) In more recent years, even as the executive branch has more successfully centralized some control, Congress has continued to encourage and promote the autonomy of U.S. Attorneys scattered across the country, in some cases to a remarkable extent. (18)

In doing so, this Note enters into the debate regarding the contemporary accuracy of the Madisonian vision of separation of powers. Our tripartite scheme of government assumes that "the great security against a gradual concentration of several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." (19) Yet many have questioned the veracity of this motivating premise behind the separation of powers in American political life. (20) Daryl Levinson and Richard Pildes have offered the most prominent eulogy for the Madisonian vision. In their view, members of Congress do not maintain loyalty to Congress qua Congress, but rather maintain loyalty to party and, along with it, party members in competing branches. (21)

Rather than conceding the demise of the interbranch rivalry so crucial to the functioning of the separation of powers, this Note argues that with respect to federal criminal justice, the rivalry endures. It also provides evidence that the Founders crafted a system in which Congress "stood the first among equals" precisely because it retained the power to structure the other branches. (22) In other words, this Note identifies both the weapon (dispersion) and the target (criminal law) of congressional resistance in the interbranch conflict. If we want to revive the rivalry in other areas, we'll need to identify the reasons why this dynamic endures in this domain but not others. Only in desegregating these contexts can we envision a new scheme of separation of powers that takes into account both party and institutional loyalties.

This history also offers a cautionary tale for those eager to centralize the administrative apparatus surrounding federal criminal law. Scholars and pundits, for example, have called for the transfer of authority over criminal-enforcement priorities to the White House and Main Justice specifically. (23) This push can be situated within a larger current of advocacy for increased presidential control over enforcement priorities--both criminal and civil--across the administrative state. (24) Indeed, the modern trend has been a migration toward the centralization of the executive bureaucratic apparatus. (25) Many scholars and commentators have celebrated this movement. (26)

But the dispersed nature of the federal administration of justice is long overdue for a defense. (27) The history of federal criminal prosecution speaks to the underexplored benefits of an enforcement structure that lodges discretionary authority within actors at the periphery instead of those at the center. This Note suggests that the benefits of federal dispersion in this area are twofold. First, this structure allows multiple actors to exercise authority over criminal enforcement, diffusing power within the executive branch itself. Second, the dispersed structure of the federal criminal apparatus facilitates the creation of relationships between federal enforcement actors and their state and local counterparts, allowing for local participation--and accompanying variance--in federal policy making. In other words, the system promotes the values of federalism, transforming state and local actors from their oft-depicted role as "servants" to that of "partners" with their federal counterparts. (28)

This Note proceeds in three parts. Part I sketches the history of the enforcement of federal criminal law, which has always been defined by its decentralized nature. At the Founding, federal attorneys were spread throughout the country, subject to no statutorily defined chain of command within the executive branch, and they often lacked efficient means of communication with national officials. (29) Despite calls for placing the apparatus more firmly under presidential control, Congress maintained a decentralized criminal law regime where power was exercised on the periphery. Some scholars have examined this history to ascertain the constitutional boundaries of executive control of law enforcement. (30) This Note does not argue that this history conclusively settles the contours of executive power; instead, it relies on this history to show how Congress can, in practice, check presidential ambitions.

Turning to the present era, Part II examines the other side of the power struggle: executive-branch tools employed in the service of monitoring and centralizing law enforcement control. Part II reveals that these mechanisms by which the center could theoretically exert more authority over the periphery have achieved some successes but are often quite ineffective in practice, in part because of congressional opposition to centralization efforts. Yet clashes between the executive and legislative branches over policy decisions in this domain have served a valuable purpose in their own right--bringing to the forefront enforcement choices often shielded from public view.

This exploration of modern practice also reveals the benefits of our decentralized system, a point elaborated in Part III, which defends the decentralized structure of federal criminal law as both a method of facilitating local participation and as a check on presidential power. In other words, the maintenance of the interbranch rivalry presents not merely an end itself, but a means to a more desirable constitutional end. (31) Commentators often associate state and local governments with the benefits of federalism...