May Prosecutors Take Direction From the President?

42 Pages Posted: 2 Oct 2018 Last revised: 31 Mar 2019

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Rebecca Roiphe

New York Law School

Date Written: September 14, 2018

Abstract

What would happen if the President could control federal prosecutors and directed them to make discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the Department of Justice? We have argued, in a companion article, that the President has no such power. In this Article, we play out the consequences if we are wrong. If they follow the President’s direction, prosecutors would likely violate ethical rules and norms. Because these professional obligations are created by courts and endorsed by federal statute, presidential control over prosecutorial decision making would lead to serious separation of powers concerns. Particularly, the integrity of the judicial system depends on the ethical rules at issue. By exploring these separation of powers concerns, this Article contributes to a growing debate about the power of the executive over prosecution and further supports the independence of DOJ and federal prosecutors.

Keywords: Presidential Powers, Separation of Powers, Prosecutors, Ethics, Department of Justice

Suggested Citation

Green, Bruce A. and Roiphe, Rebecca, May Prosecutors Take Direction From the President? (September 14, 2018). Fordham Law Review, Vol. 87, 2018, NYLS Legal Studies Research Paper No. 3249824, Available at SSRN: https://ssrn.com/abstract=3249824

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

Rebecca Roiphe (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2804 (Phone)

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