Federal prosecutorial independence in the American judicial system

A recent controversy in the United States illustrates tensions surrounding the issue of federal prosecutorial independence under the American system. 

In the United States, federal judges are independent of executive or legislative control.  They have life tenure and are removable, like the President, only by the congressional process of impeachment.  Unlike in most civil law countries, however, federal prosecutors are not judges.  They are lawyers employed full-time as civil servants within the Department of Justice (“DOJ”).  The DOJ is led by the Attorney General, the American equivalent of a European minister of justice, who is appointed by the President.  Although the Attorney General sets the general enforcement priorities of the DOJ in accordance with the President’s policies and program, and there is no legislative or constitutional barrier to the involvement of the President or the Attorney General in prosecutorial decisions in specific cases, by long tradition both the President and the Attorney General refrain from directing DOJ prosecutors to take specific positions in particular cases in which the President has a political or personal interest.

The recent prosecution of Roger Stone, a long-time friend and political operative of President Trump’s, has put this tradition to the test.  A federal jury convicted Stone of obstruction and other crimes related to his efforts to thwart a congressional investigation of alleged Russian interference in the 2016 US presidential election.  On February 10, 2020, the DOJ recommended to the trial judge that Stone be sentenced to imprisonment for seven to nine years.  Trump immediately tweeted that he objected to the sentence recommendation as unduly harsh.  On February 11th Attorney General William Barr caused the DOJ to file a revised sentencing recommendation that indicated the sentence should be substantially less than the originally requested sentence.   All four of the federal prosecutors who tried the Stone case promptly resigned in protest.  On February 12th, Trump praised Barr on Twitter “for taking charge of a case that was totally out of control and perhaps should not have even been brought.”  Trump also criticized by name the federal judge who presided at Stone’s trial and will sentence Stone.  Barr later claimed that he never discussed the case with the President and that he already had decided to revise the trial prosecutors’ sentencing recommendation before Trump objected to it. 

On February 16th, more than 2,000 former federal prosecutors published a letter demanding Barr’s resignation.  The White House reiterated the President’s confidence in Barr.  On February 18th, the leaders of an association of federal judges announced an emergency meeting to “address growing concerns” about the intervention of President Trump and Attorney General Barr in “politically sensitive cases.” 

On February 20th, Stone was sentenced to 40 months in prison.  A few days after the sentence, the trial judge rejected Stone’s motion to disqualify her for alleged prejudice against him.  He has filed a motion for a new trial, which is awaiting decision by the trial judge.  If the motion is rejected, Stone is certain to appeal his conviction to the U.S. Court of Appeals in Washington.  He remains free on bail pending further proceedings.

The controversy highlights a fundamental paradox in the American system.  The DOJ is a department of the executive branch of the federal government, and directing its operations thus falls within the legal and constitutional authority of the President --- who is accountable to the voters.  Yet a long tradition has developed by which neither the President, the Attorney General nor any political appointee in the DOJ interferes in prosecutorial decision-making in politically-sensitive cases.  The actions of President Trump and Attorney General Barr in the Stone case put that tradition in question.  However the Stone case is resolved, the US bench and bar, including former federal prosecutors, must grapple with the issue of prosecutorial independence as never before.

By Stephen L. Dreyfuss
UIA President of Honor
Hellring Lindeman Goldstein & Siegal LLP
Newark, NJ, United States