Nontraditional Criminal Prosecutions in Federal Court

Abstract

Who, besides the U.S. Department of Justice, can prosecute criminal actions in federal court? This Article considers this question, which has arisen recently in various contexts—DOJ’s attempt to abort the prosecution of former National Security Advisor Michael Flynn, the contempt prosecution of former Sheriff Joseph Arpaio (who received a presidential pardon), the confrontation over the court-appointed interim U.S. Attorney in New York, and a local District Attorney’s threats to prosecute lawbreaking federal law enforcement officials. Consider first nontraditional trial-level federal prosecutions. The Constitution’s Take Care and Appointments Clauses, as well as standing, preclude private prosecutions and prosecutions by states and Houses of Congress. Court-appointed interim U.S. Attorneys may oversee federal prosecutions, and court-appointed special prosecutors may prosecute criminal contempt cases. However, court-appointed attorneys likely cannot undertake broader responsibilities. Consider next criminal appeals. While the Supreme Court has acknowledged the possibility of a state’s appellate standing where DOJ declines to appeal a federal criminal decision holding a state statute unconstitutional, that precedent is dubious. Moreover, even if a state’s standing is sometimes proper, the case for appellate standing of a House of Congress is weaker. Finally, consider state prosecutions in federal court. A state should have standing to appeal criminal cases to the Supreme Court, and to pursue properly removed state criminal prosecutions in the lower federal courts, as should any properly designated state governmental entity. To the extent a state allows private prosecutions, aggrieved individuals ought to be able to pursue such prosecutions if they are properly removed.