Separation of Prosecutors

Abstract

A federal official’s physical proximity to Washington often provides a rough approximation of his political authority. In this respect, our controversial and much-criticized system of federal criminal law is distinct. Within this domain, thousands of immensely empowered officials exercise enormous control despite being scattered across the country. Legal scholarship has generated volumes of criticisms of this system, with less attention devoted to how and why it developed in this manner and what might be said in its favor. This Essay offers a novel explanation and defense of the decentralized nature of the federal administration of justice. To do so, it first excavates the historical and contemporary dynamics surrounding the Department of Justice, demonstrating that this structure is a feature of congressional design rather than a bug of congressional abdication. While Presidents since the Founding have called for the centralization of criminal law enforcement, Congress has generally ignored or rebuffed those demands, instead choosing to disperse prosecutorial power in the hands of thousands of lower-level executive branch officials. The story of federal criminal law therefore reveals that the rivalry between the branches persists in certain domains and that Congress can pursue its objectives by structuring relationships within the executive branch itself. This Note argues that the significant authority delegated to individual federal prosecutors vis-a-vis Main Justice and the President has two undertheorized benefits. Decentralization places a practical check on presidential power in an area bereft of formal constraints. It also enables the creation of relationships between federal and state and local law enforcement officials, facilitating the incorporation of local enforcement priorities in a policy area that has always been considered of uniquely local interest. While defending the general contours of the federal administration of justice, this Note aims also to propose more realistic and productive reforms to the federal prosecutorial system that are responsive to the separation-of-powers dynamics at play.