Bruce A. Green and Fred C. Zacharias (Fordham University School of Law and University of San Diego – School of Law) have posted ‘The U.S. Attorneys Scandal’ and the Allocation of Prosecutorial Power (Ohio State Law Journal, Vol. 69, No. 2, 2008) on SSRN. Here is the abstract:
Critics of George W. Bush’s administration have charged that the balance in federal law enforcement has tipped in the direction of too much centralized control of prosecutorial decision making. The recent discharges of eight U.S. Attorneys in late 2006 are viewed as a prime example. Allegations have surfaced that DOJ influenced U.S. Attorneys’ Offices to pursue the President’s partisan agenda by encouraging the overzealous pursuit of voting rights cases and government corruption cases against Democrats and by discharging individual U.S. Attorneys who resisted.
The centralization of prosecutorial authority that the recent firings exemplify can be seen as a mechanism that facilitates abuse of government power, because it enables the Attorney General and other high-ranking DOJ officials to enforce prosecutorial decisions that promote partisan objectives. Nevertheless, any call to give lower level prosecutors greater independence from higher ranked officials would be strikingly at odds with one of the primary themes of contemporary commentary on prosecutorial ethics. Prosecutorial misconduct traditionally is considered to be the product of too much independence, particularly on the part of rogue prosecutors on the front lines. Centralization helps check such misconduct.
The events surrounding the recent firings provide an occasion for reconsidering conventional wisdom about how prosecutorial power should be allocated. By addressing the question of who should exercise federal prosecutorial discretion and on what basis, this Article helps develop a better understanding of the multi-faceted roles of the participants in the federal prosecutorial system and highlights considerations regarding the appropriate allocation of decision-making authority that are applicable to federal and state prosecution agencies alike.
Highly recommended.