The Yale Law Journal

February 2019

Separation of Prosecutors

Separation of PowersCriminal LawExecutive Power

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 Note 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-à-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.

author. Yale Law School, J.D. 2018. This Note would not have been possible without the help and guidance of Professor Cristina Rodríguez as well as the students in the Separation of Powers seminar. I am also grateful to Professors Akhil Amar, Nicholas Parrillo, Kate Stith, and Daryl Levinson for their invaluable insights. Additionally, thanks to the editors of the Yale Law Journal, especially Bill Powell along with Christine Smith, Zoe Jacoby, Aaron Roper, Jordan Goldberg, and Notes Editor Emeritus James Durling for exceptional editing and meticulous sourceciting. Finally, thanks to Samir Doshi for a much-needed sense of humor and guidance.