Impeaching Prosecutors Who Fail To Prosecute

        With the election of the Soros-funded prosecutors, and radical policy innovations in prosecutorial discretion, and changed incidence (including increased incidence) in crime, those who (politically) oppose such policies will naturally look to push back against these prosecutors and their policy changes. Some will suggest impeachment as a valid route. I would not support that approach. This is why. 

        My discussion is limited to federal impeachment rules—applicable to federal officeholders—which limit impeachment to “high crimes and misdemeanors.” Some states have impeachment rules akin to the federal model, and such states’ impeachment rules will apply to their state officeholders. By contrast, under New York law, which lacks any “high crimes and misdemeanors” language regarding impeachment in its state constitution, the scope of the state legislature’s impeachment power may be considerably wider than Congress’ power under the United States Constitution. And, under the California state constitution, certain county and municipal offices are not subject to impeachment by the state legislature. Thus, elected California county prosecutors may be beyond the power of the California state legislature to impeach. 

      Again, impeachment under the federal model is limited to “high crimes and misdemeanors.” Differences of opinion in regard to best policy, and after-the-fact investigations of the real world consequences which flow from such differences of opinion regarding policy, standing alone, cannot meet the “high crimes and misdemeanors” standard. This is particularly true where the alleged wrongdoer, i.e., the officeholder-defendant, announced his policy positions prior to his appointment or election. 

        So, in what circumstances can a prosecutor be impeached under the federal model? There are primarily three situations where impeachment would be appropriate. 

        First, if a statute mandates that a prosecutor prosecute a particular class or type of crime in all circumstances (as opposed to mandating a prosecution regarding a particular or named alleged criminal), and the prosecutor knowingly fails to bring such a case (or if the prosecutor, in his role as prosecutor, intentionally loses or frustrates the case during ongoing judicial proceedings), then the legislature can lawfully impeach the prosecutor under the high crimes and misdemeanors standard. Why? Generally, knowing violations of positive law relating to one’s office meet the high crimes and misdemeanors standard. Notwithstanding such federal statutes, i.e., statutes mandating prosecuting a particular class or type of crime in all circumstances, the Executive Branch has laid claim to the discretion not to bring such prosecutions. This view has not been endorsed by the Supreme Court—or, as far as I know, by any other Article III court. It follows that a member of Congress, in good faith, could support impeaching a prosecutor in such circumstances, notwithstanding the announced position of the Executive Branch. 

        On the other hand, if Congress seeks [1] to mandate a prosecution in regard to a particular or named alleged criminal defendant, or [2] to make some conduct criminal after-the-fact, or [3] to increase the punishment for some conduct after-the-fact, a prosecutor is not duty bound to bring such a prosecution. A prosecution based (entirely) on such a statute would be unconstitutional. In such circumstances, impeaching the prosecutor for violating the statute would be wrong. 

        Furthermore, where Congress’ statute mandating a prosecution is constitutional, the scope of the prosecutor’s duty extends to his job-related conduct and to his concomitant use of government property (i.e., that government property over which he has authority as an officeholder). But it ends there. A federal prosecutor remains a human being and citizen—in other words, a prosecutor has all the First Amendment rights anyone else has. So in bringing a lawful prosecution, the prosecutor must be diligent and zealous. But, on his own time, and when using his own resources, a prosecutor is free to express the view that Congress’ policies—embodied in the statutes supplying the basis for prosecutions his office has brought—are wrong. A prosecutor can even state that the prosecutions his office has launched are a mistake. A prosecutor can express that view in private and public. Indeed, if asked under oath what his view is, the prosecutor is obliged to tell the truth and, in a judicial proceeding, the prosecutor must answer with candor. A prosecutor, in his capacity as a private citizen, can lobby the legislature to repeal a statute making conduct criminal—even where that statute furnishes the basis for an ongoing prosecution he or his office has brought. The expression of such views by a prosecutor is entirely legal; therefore, it cannot be the basis for an impeachment. 

        By way of example: Whether President Clinton’s perjury in regard to sex was impeachable conduct, or not, is a question capable of different reasonable views. By contrast, it was not impeachable conduct for Clinton to express the opinion, even in public, that the Whitewater prosecution was a political hit job. His expressing that viewpoint was core First Amendment protected speech. It does not matter if he was “correct” or not in regard to that view—it does not even matter if he sincerely believed what he way saying. The expression of such a view, even if it in some sense frustrates government policies embodied in federal statutes, is entirely legal, and therefore, it cannot form the basis for an impeachment. 

        Second, mundane statutes provide prosecutors with discretion. But even discretion has limits. A prosecutor has limited resources and can choose priorities. A prosecutor can choose to prosecute a crime in particular circumstances—e.g., where the evidence is particularly strong, or where the societal harm caused by the crime is particularly great. But if a prosecutor establishes a policy for his office, e.g., that his office will never bring a prosecution in regard to a particular class or type of crime, then that policy choice would entirely nullify or suspend a statute.* The President cannot do that, i.e., entirely nullify or suspend a statute, and, a fortiori, neither can his prosecutors and other appointees. An elected or appointed officeholder’s knowingly embracing such a policy choice—i.e., one entirely nullifying or suspending a statute—would meet the high crimes and misdemeanors standard. Why? A prosecutor cannot make legal what the legislature has determined to be a crime. 

        Third, there is always bribery. Bribery is a good basis for bringing an impeachment. But after-the-fact recharacterization of normal democratic political expression and conduct as bribery does not make otherwise legal conduct either illegal or impeachable. Traditionally, bribery means receiving a private benefit, like cash or other property, accepting it secretly, and not paying taxes on it—all in exchange for some act or inaction by an officeholder.** If a prosecutor takes $1,000 from a potential defendant, and puts the money in his (i.e., the prosecutor’s) closet in exchange for not prosecuting that defendant, then that is a bribe—it is a crime, and it is impeachable conduct. But if a president runs for office or a prosecutor seeks an appointment based on a platform or programme of limiting the frequency or number of prosecutions for street crime, and then reminds every defendant and their family of his decision not to prosecute or of his decision to seek only limited penalties, and as a result, many such wrongdoers (and their immediate family members, close friends, and other associates) vote for that president or prosecutor, or donate to that president’s or prosecutor’s campaign committee, or volunteer to pass out that president’s or prosecutor’s campaign literature—all such activity is entirely legal (even if in some sense regrettable). And just as it is legal, such conduct is not impeachable. It is normal democratic politics. The proper response by the opposition is to oppose that candidate at the polls and to remind all the victims, citizens, and voters in the wider polity of what the stakes are in the election. That too is normal democratic politics. If one fails to engage in normal democratic politics, others will fill in that vacuum, and certain consequences are likely (or, at least, more likely) to follow.

        In conclusion, one may ask: If impeachment is off the table, how can one lawfully oppose prosecutors whose policies one opposes? There is normal democratic politics, recall if available, and, of course, the next election. If you cannot wait for the next election, one possibility is to cabin prosecutorial discretion by statute. Of course that solution is based on trusting that the officeholder will comply in good faith.  

        Another possibility is that you can seek to have an office terminated by statute. (Generally, offices created by a constitution cannot be terminated by statute, but offices created by statute*** can be terminated by statute.) Indeed, such a statute only requires a simple majority in each house of the legislature. Federal impeachment, by contrast, requires a House majority and a two-thirds super-majority in the Senate. Of course, the responsibilities currently handled by the officeholder whose position is being terminated will have to be re-assigned. Who, Whom? And that takes us all back to normal democratic politics. 

        Seth 

        Seth Barrett Tillman, Impeaching Prosecutors Who Fail To Prosecute, New Reform Club (Jan. 5, 2022, 6:21 AM), <https://reformclub.blogspot.com/2022/01/impeaching-prosecutors-who-fail-to.html>; 

        * There is a rich historical and legal literature, much of it opposing a particularly strong version of the unitary executive theory, arguing that the President has no “regal” power to suspend statutes. My own view is that any effort by an Executive Branch officeholder to suspend a statute, where the constitutionality of the statute is not in doubt, is a violation of the officeholder’s oath of office. Where a subordinate Executive Branch officeholder’s conduct is at issue, then the President’s supervisory duties under the Take Care Clause are implicated. (I am not making any claim here related to what lawful powers a king of England/king of the Scots/king of Great Britain had—or purported to have—in the late eighteenth century.) 

        ** The core of bribery serving as a basis for impeachment relates to an officeholder’s engaging in an exchange involving his office’s powers (or government property over which he has authority in his role as an officeholder).

    *** Under the Constitution of 1788, an office created by, ratified by, or entirely defeasible by statute is traditionally called an “office . . . under the United States.” Terminating an Article III court effectively amounts to a removal from office. Article III mandates good behavior tenure for Article III judges. Therefore, such terminations are likely to give rise to constitutional challenges, which will be heard by other Article III judges and Justices. See, e.g., Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).