The Law: Executive Power and Prosecution: Lessons from the Libby Trial and the U.S. Attorney Firings

Abstract

Presidential control of federal prosecution has created, throughout American history, tensions between realities of political control and ideal of rule of law. While control guarantees a measure of democratic accountability for how law enforcement power is exercised, potential for that political control to become politicized is always there and has periodically erupted in significant scandals in American politics. Between 2003 and 2007, two such scandals occurred, serving to remind us of tenuous balance in federal law enforcement system between accountability and independence and between politics and rule of law. The investigation and prosecution of Vice Dick Cheney's chief of staff, I. Lewis Scooter Libby, by an independent special counsel demonstrates that our long argument about how best to handle criminal allegations against high-ranking branch officials, started in modern context by Watergate, has yet to be resolved. The scandal that erupted in 2007 over firing of U.S. attorneys, leading to resignation of Attorney General Alberto Gonzales, demonstrates that conflict over political control of prosecutorial power is not just isolated to a few high-profile cases. Both cases remind us of importance of attorney general as linchpin in federal justice system between president and prosecutors and difficulties created by dual roles that attorneys general play as both presidential advisors and law enforcement officers. When that delicate balance tips toward political side of job, confidence in impartial administration of justice is undermined. Issues in Executive Control of Prosecution The root of conflict over how much control president should exercise over prosecutorial function lies within U.S. Constitution. The source of authority is found in Article II power to take care that laws be faithfully executed and in president's ability to appoint, by advice and consent of Senate, officers to aid him in execution of law. Advocates of a strong executive understanding of presidential power argue that president has all of law enforcement power because such power is in nature, and that in order to fulfill this Article II command, he must have complete control over officers exercising this power on his behalf. Justice Antonin Scalia argued this position strenuously in his dissent in Morrison v. Olson, 1988 case upholding independent counsel statute. (1) This expansive notion of presidential power, particularly as it relates to prosecution, has been challenged on several fronts. First, historical experience with development of federal prosecution shows that this power was not perceived as inherently executive or under unitary control of in early days of country. Rather, prosecution was highly decentralized and controlled, if at all, not by attorney general but by judicial authorities and through comptroller general (who was, in turn, controlled by Congress) and Department of Treasury (Krent 1989; Lessig and Sunstein 1994). Lawrence Lessig and Cass R. Sunstein contend that if the framers' and early Congresses' actual practice is any indication of their original understanding, then they did not understand prosecution to be within notion of 'executive Power' exclusively, and therefore did not understand it to be within exclusive domain of President (1994, 15-16). Even as federal prosecutorial power expanded and Department of Justice was created in 1870 in an effort to centralize control of federal law enforcement, prosecution remained highly decentralized, with U.S. attorneys operating with a high degree of autonomy from control by Main Justice. The nature of federal system and size and complexity of federal legal apparatus all contributed to relative independence of U. …