88 Pages Posted: 24 May 2005
Since Watergate, legal scholars have been prominent participants in a larger debate about the President's constitutional relationship to prosecutions. In the wake of Morrison v. Olson in particular, a number of scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Making a series of claims about early constitutional practice, these revisionist scholars cited the supposed independence of the district attorneys, the availability of qui tam actions, and the apparent absence of presidential control. In fact, constitutional history indicates that many of the revisionist claims are wrong and others are beside the point. Despite the lack of statutory authority over the district attorneys, the President directed the district attorneys in all sorts of prosecutorial matters. As authority for their direction, the Presidents cited their constitutional power over law execution. Similarly, there is no evidence that the statutes authorizing qui tam actions wholly precluded presidential control over the qui tam relators. If English practice is any indication, the executive was understood to exercise a great deal of control over those who prosecuted on the public's behalf. Though there are many reasons to support divorcing the President from prosecution, this understandable impulse does not have the imprimatur of early constitutional history.
Keywords: Constitutional Law, Prosecutors, Originalism, Article II
JEL Classification: K10
Suggested Citation: Suggested Citation
Prakash, Saikrishna, The Chief Prosecutor. George Washinton Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=728504