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The law: executive power and prosecution: lessons from the Libby trial and the U.S. attorney firings.

Article Excerpt
Presidential control of federal prosecution has created, throughout American history, tensions between the realities of political control and the ideal of the rule of law. While executive control guarantees a measure of democratic accountability for how law enforcement power is exercised, the 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 the tenuous balance in the federal law enforcement system between accountability and independence and between politics and the rule of law. The investigation and prosecution of Vice President 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 executive branch officials, started in the modern context by Watergate, has yet to be resolved. The scandal that erupted in 2007 over the firing of U.S. attorneys, leading to the resignation of Attorney General Alberto Gonzales, demonstrates that the conflict over political control of prosecutorial power is not just isolated to a few high-profile cases. Both cases remind us of the importance of the attorney general as the linchpin in the federal justice system between the president and the prosecutors and the difficulties created by the dual roles that attorneys general play as both presidential advisors and law enforcement officers. When that delicate balance tips toward the political side of the job, confidence in the impartial administration of justice is undermined.

Issues in Executive Control of Prosecution

The root of the conflict over how much control the president should exercise over the prosecutorial function lies within the U.S. Constitution. The source of authority is found in the Article II power to "take care that the laws be faithfully executed" and in the president's ability to appoint, by advice and consent of the Senate, executive officers to aid him in the execution of the law. Advocates of a strong "unitary executive" understanding of presidential power argue that the president has all of the law enforcement power because such power is inherently executive 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, the 1988 case upholding the independent counsel statute. (1)

This expansive notion of presidential power, particularly as it relates to prosecution, has been challenged on several fronts. First, the historical experience with the development of federal prosecution shows that this power was not perceived as "inherently executive" or under the unitary control of the executive in the early days of the country. Rather, prosecution was highly decentralized and controlled, if at all, not by the attorney general but by judicial authorities and through the comptroller general (who was, in turn, controlled by Congress) and the 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 the notion of 'executive Power' exclusively, and therefore did not understand it to be within the exclusive domain of the President" (1994, 15-16). Even as federal prosecutorial power expanded and the 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 the federal system and the size and complexity of the federal legal apparatus all contributed to the relative independence of U.S. attorneys from centralized control of their decision making (Eisenstein 2008).

U.S. Supreme Court decisions have tended to reinforce this bifurcated view of executive control of prosecution. On the one hand, the Court has tied its support for broad discretion in prosecutorial decision making to the prosecutors' link to executive law enforcement powers. (2) On the other hand, it has agreed, as it did in the Morrison case, that Congress has the power to create "inferior officers" exercising prosecutorial power or some other form of executive power who can be insulated in various degrees from executive control. (3)

Beyond the constitutional dispute, there are what we might call practical or policy reasons offered by each side of this debate for why the executive must control prosecution and why prosecutors must have at least some degree of independence from that control. The argument for democratic accountability is central to the position that the president must control prosecution, whether it is exercised by special prosecutors or U.S. attorneys. Critics of the independent counsel arrangement allege that without executive control, these prosecutors are unrestrained from pursuing frivolous or vindictive prosecutions that ordinary prosecutors would not pursue. Advocates of strong central control of U.S. attorneys by Main Justice contend that the elected head of the executive branch shapes the policy priorities of the administration and should be able to ensure that those are also the policy priorities of the law enforcement officers he appoints. Congress enacts federal law and holds the president responsible for enforcing it. More broadly, the notion of equal justice under the law implies that federal law will not be enforced differently in different jurisdictions, and only centralized control can ensure that goal is accomplished (Eisenstein 2008, 3-5).

Pushing against these arguments for central executive control are arguments for greater independence, which rely primarily on the ideal of impartial justice and the importance of public confidence in the administration of justice. While acknowledging the legitimacy of policy leadership from elected officials, H. W. Perry notes that our expectations for the Department of Justice go well beyond this. "In our gut and our rhetoric," he writes, "we know that there is something about the administration of law that makes political responsiveness even more problematic. Surely enforcing the law is different from administering agricultural policies, or even foreign relations. We expect the Department of Justice to be different. Even the most ardent defenders of the need for Justice to be more faithful to the Executive rather than the Judicial Branch or to the lawyer's own interpretation of the law expect Justice to be less responsive and partisan than other executive agencies" (1998, 132).

The practical problem of the perception or reality of conflict of interest in cases in which the executive investigates itself has led to calls for greater independence in prosecution. From the start of the Justice Department's history, there have been challenges to its ability to investigate impartially high-ranking members of the executive branch. Special prosecutors of one sort or another were used to investigate the Whiskey Ring scandal of the Ulysses S. Grant administration, the Teapot Dome scandal of the Warren G. Harding administration, the tax scandals of the...

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