The imperial prosecutor?

• Author: Brian Richardson
• Position: Assistant Professor of Law and Jia Jonathan Zhu & Ruyin Ruby Ye Sesquicentennial Faculty Fellow, Cornell Law School
• Pages: 39-94

ARTICLES

THE IMPERIAL PROSECUTOR?

Brian Richardson*

ABSTRACT

Federal prosecutors’ authority in the U.S. legal system is imperial. When they

act, prosecutors speak for the whole of the U.S. government across all policy-

making domains. Ideally, their judgments, expressed in many thousands of retail

investigative and prosecutive decisions each year, are meant to be insulated from

the interests of other Executive Branch actors—even, on many accounts, from the

White House. The relevant ideal is expressed not principally as an injunction

against self-dealing or “political” influence, but rather as the far broader norm

of prosecutorial independence.

This Article describes and appraises a growing set of federal criminal prohibi-

tions that predictably implicate national interests beyond the criminal law, such

as national security, diplomatic, and economic interests. Crucially, the criminal-

ization of activity in such policy domains, when paired with exclusive charging

discretion for prosecutors, may yield divergent judgments within the Executive

about whether the enforcement of criminal law serves the national interest. Yet

prosecutors’ deliberative practices take place principally among prosecutors,

using the distinctive grammar of ordinary, case-by-case law enforcement judg-

ment. That grammar reflects a conscious selection to allow prosecutors a pro-

criminal-enforcement free agency. Moreover, that grammar is, by design, insen-

sitive to other modes of Executive decision-making. On a strong account of the

independence norm, prosecutors’ judgment must win.

Because enforcement choices in federal criminal cases are allocated to prose-

cutors alone, this creates a “deliberative dilemma”: prosecutors wield a power

that can affect the whole Executive’s interests, but they can act without transpar-

ent access to information about priorities beyond criminal law enforcement. This

Article argues that we can choose strict prosecutorial independence or whole-

government deliberation about the national interest, but we cannot have both.

Predictable pathologies ensue when the dilemma is not managed. The ideal of

independence may give way way to ad-hoc accomodations that are sometimes

* Assistant Professor of Law and Jia Jonathan Zhu & Ruyin Ruby Ye Sesquicentennial Faculty Fellow,

Cornell Law School. The author was a prosecutor in the office of Special Counsel Robert S. Mueller III. None of

the material discussed or views offered in this Article are based on that work. Many thanks to Mike Dorf, James

Grimmelmann, Henry Monaghan, Dave Pozen, Jed Purdy, Aziz Rana, Michael Reisman, Dan Richman, Chantal

Thomas, and Matt Waxman many helpful comments and conversations. © 2021, Brian Richardson.

39

feigned, sometimes tactical, but in any event sufficiently risky to recommend

other models of Branch-wide prosecutorial decision-making. After unearthing

these tensions, the Article concludes by exploring Branch-wide deliberative

norms to manage them.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

I. THE IMPERIAL PROSECUTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

A. The Appearance of Corruption and the Problem of Prophylaxis 47

B. Prosecuting the National Interest in Court . . . . . . . . . . . . . . . 51

C. Incentives, Discretion, and Autonomy . . . . . . . . . . . . . . . . . . 52

II. THE SOVEREIGN’S OTHER INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . 57

1. Propaganda Prosecutions as Total War. . . . . . . . . . . . . . . 57

a. Rush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

b. Ovakimian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

c. Gorin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

d. FARA During and After the War. . . . . . . . . . . . . . . . 65

e. Consequences of FARA Prosecution . . . . . . . . . . . . . 67

2. Criminal Investigations as Diplomacy . . . . . . . . . . . . . . . 68

3. Justice and Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . 72

A. The Signal Attribution Problem . . . . . . . . . . . . . . . . . . . . . . . 76

B. Solutions and Discontents . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

1. Horizontal Centralization But Vertical Independence . . . . 82

2. Non-Independence in Fact . . . . . . . . . . . . . . . . . . . . . . . 86

III. THE NORMATIVE CHOICES WE HAVE MADE AND COULD REMAKE . . . . . 87

A. Abstention and Independence . . . . . . . . . . . . . . . . . . . . . . . . 87

B. Criminal Law Enforcement in the National Interest. . . . . . . . . 91

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

INTRODUCTION

The American prosecutor is a peculiarly powerful agent of her government.

When she speaks, she speaks for “The United States of America”;

1

when she acts,

she draws upon a fund of Executive and Judicial power that has been endowed by

the courts and the Executive Branch with unusually strong legitimacy and

independence.

2

1. See 28 U.S.C. § 516 (“reserv[ing]” to the Department of Justice all litigation in which the United States is

interested); Sewall Key, The Legal Work of the Federal Government, 25 VA. L. REV. 165, 198 (1938) (describing

the consolidation of the government’s litigating authority in the Department of Justice).

2. See The Att’y Gen.’s Role as Chief Litigator for the U.S., 6 Op. O.L.C. 47, 48 (1982) (describing a

“[p]lenary power over the legal affairs of the United States” vested in the head of the Department of Justice);

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[S]o long as the prosecutor has probable cause to believe

that the accused committed an offense defined by statute, the decision whether or not to prosecute, and

what charge to file or bring before a grand jury, generally rests entirely in his discretion”); Lauren M.

40 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:39

The American prosecutor is also an especially powerful agent within her govern-

ment. She is neither a regulator, a diplomat, a trade negotiator, nor an obvious part

of the national-security apparatus, yet she often defines and executes the sover-

eign’s national interest nonetheless. When the prosecutor’s mandate to administer

the criminal justice system requires her to balance law-enforcement prerogatives

with other reasons of state, how should she deliberate, speak, and act, as the agent

of the United States?

Consider three slightly stylized cases.

First: Congress, of a mind to regulate the domestic oil industry, criminalizes

anti-competitive conduct, and it puts the industry under the regulatory oversight of

the Secretary of the Interior. A local U.S. Attorney indicts several oil retailers

under the new statute. The Secretary of the Interior, the putative regulator of the

industry, registers his disagreement in the press: “I do not agree with the policy of

the U.S. Attorney for the Southern District of California in seeking these indict-

ments.” And he charges the prosecutors with “once more throwing the oil industry

. . . into a state of chaos.”

3

Second: Congress empowers the President to impose economic sanctions against

countries that pose an “unusual or extraordinary threat” to the “national security,

foreign policy, or economy” of the United States

4

and criminalizes efforts to evade

those sanctions.

5

Investigators soon suspect an elaborate scheme: a bank owned by

an allied country allegedly facilitates billions of dollars’ worth of indirect transfers

to a country deemed to be a risk to national security. A criminal judgment would

threaten vast economic consequences for the ally. The bankers’ attorneys report-

edly approach the Secretary of State with an offer: the ally will release an

American abroad if the Secretary can convince the Attorney General to drop the

case. The Secretary refuses, allegedly calling the proposed intervention “illegal,”

6

and line prosecutors resist reported efforts by the AG to reach a settlement.

7

Ultimately, a U.S. Attorney indicts the foreign bank and several alleged

conspirators.

Ouziel, Legitimacy and Federal Criminal Enforcement Power, 123 YALE L.J. 2236, 2278–2316 (2014)

(describing the special “legitimacy” of the federal criminal justice system and federal prosecutors’ special sway

in court).

3. California Oil Companies Indicted on Accusations of Violating Oil Code—Secretary Ickes Clashes with

Department of Justice over Action, 138 COMM. & FIN. CHRON. 2826, 2827 (1934).

4. 50 U.S.C. §§ 1701–1702.

5. Id. § 1705(a), (c). See also 31 C.F.R. § 560.203.

6. See Kelly Bjorklund, Trump’s Inexplicable Crusade to Help Iran Evade Sanctions, FOREIGN POL’Y (Jan. 9,

2021), https://foreignpolicy.com/2021/01/09/trump-help-iran-evade-sanctions-turkey-halkbank/; Nick Wadhams,

Saleha Mohsin, Stephanie Baker & Jennifer Jacobs, Trump Urged Top Aide to Help Giuliani Client Facing DOJ

Charges, BLOOMBERG NEWS (Oct. 9, 2019), https://www.bloomberg.com/news/articles/2019-10-09/trump-urged-

top-aide-to-help-giuliani-client-facing-doj-charges.

7. Erica Orden & Kara Scannell, Attorney General’s Actions Spark Outrage and Unease Among US

Prosecutors, CNN (Feb. 15, 2020), https://edition.cnn.com/2020/02/15/politics/william-barr-roger-stone-prosecutors-

outrage/index.html.

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