How Federal Prosecutors Make decisions

By Ronald W. Chapman II, ESQ

The Origins of Federal Prosecution

To understand the motivations of the modern prosecutor we need to take a little detour into the origins of federal prosecution. 

In the seventeenth seventeenth - and eighteenth- century in England, a system of private prosecution prevailed. Unlike modern prosecutorial discretion, no public official was designated as the prosecutor, although the local justice of the peace sometimes assumed the role. While individual citizens could bring charges the Attorney General had extraordinary power in dismissing them and could file a “writ of nolle prosequi,” a document that would dismiss charges brought by individuals. This is where the term “press charges” originated from. Individuals who were the victim of crime could file a charge in court and subject the defendant to trial.

Criminal procedure in the American Colonies followed a similar pattern but with an attorney general in each colony – the first was appointed in Virginia in 1643. The American Attorneys General could represent the Crown in both civil and criminal cases but left criminal prosecution to the victim of the crime. This obviously didn’t go so well in the a new society that was much more farfar removed from a monarchy which oversaw a country the crown where crimes against the crown became the predominant offenses. Moreover, as the balance of power in the colonies unwound, more powerful British allies were able to exert pressure for financial reparation by bringing charges and settling their matters privately for financial gain.

In 1704, the first County court emerged in Connecticut. Areas settled by the British were slow to convert their prosecution function from private to public while areas settled by the Dutch began with the ability of public prosecution. By At the time of the American Revolution, each colony had a public prosecution function and the new country formed, resultant of this after the revolution, which followed adopted a similar pattern by creating a federal system of prosecution. Still, it was not until the Civil War broke out in 1861 that congress gave the Attorney General of the United States the sole authority to prosecute federal offenses.

The office of the United States Attorney was created by the Judiciary act of 1789. This same act also created the Supreme Court and the United States Federal judiciary. Each united states attorney acted independently in their federal districts and it was not until 1870, with the creation of the department of justice, that the offices became unified under the Attorney General.

The Rise of Prosecutorial Power

While the American system of law was gradually changing into a right of public prosecution, its laws were changing too. The English system of laws was based on “common law” where judges had the ability to define what a crime is but there was no formal codification of crimes and their elements.

Back in the 18th and 19th centuries, federal law focused on areas where there was an express grant of power to the federal government in the constitution such as military, foreign relations, tariffs, and mail.  With the expansion of the commerce and spending clauses, federal law expanded into areas like aviation, telecommunications, railroads, and controlled substances.

The gradual expansion of federal power crept into the lives of every American. Today, nearly every citizen, every day, interacts with the federal government and does so in a way that very easily could be considered a federal criminal violation. Make a mis-statement on your tax return? Felony. Make a mis-statement on a bank application or insurance application? Felony. Trespass on federal park property? Felony. Accept prescription medication not prescribed to you? Felony. 

One other legal development came about in the late 20th century that gave even more power to federal prosecutors – textualism. Textualism is not a new concept. that was developed in the 19th century, but it became prominent at the hands of the late Justice Antonin Scalia. Textualism is the strict adherence to the meaning and intent of the law and requires judges to determine only if that meaning and intent violates the constitution. According to textualism, Judges do not have the authority to “legislate from the bench” by changing the meaning of a law to tailor its application to constitutionally permissible grounds.

With the expansion of the commerce clause and rise of textualism, overcriminalization became rampant and federal laws began pouring out of the congress, impacting nearly every interaction within a society that a citizen has. 

Given the broad range of laws available to prosecutors, the dual sovereign doctrine, high conviction rate in federal cases, and the limited avenue of appeal in federal court, federal prosecutors are now given broad authority to target nearly every citizen of the United States.

The Role of the Federal Prosecutor

Let’s first think of the role of the federal prosecutor in the justice system and how they decide who gets prosecuted:. Federal prosecutors are often the cream of the crop. They hail from the best law schools and generally have a brief stint as a law clerk in “big-law” before applying to the United States Attorney’s Office. Their boss, the United States attorney, is appointed by the President of the United States for a term of four years and appointments must be confirmed by the president. History and tradition dictate that when a new president is elected the United States Attorney appointed by the preceding president hand in their resignation. United States Attorneys act at the behest of the United States Attorney General and each new AG who is appointed enters office with their own set of priorities that serve the President of the United States. The result is that the United States Attorney acts as more of a political appointee than an impartial guardian of justice often pursing the political initiatives of the President and Attorney General.

As the chief federal law enforcement officers, U.S. Attorneys have authority over all federal law enforcement personnel within their district and may direct them to engage, cease or assist in investigations. This involves command of the all law enforcement entities that fall under the Department of Justice, the FBI, ATF, and DEA. U.S. Attorneys also cooperate with other non-DOJ law enforcement agencies such as the Office of Inspector General, Internal Revenue Service, and Department of Homeland Security.

There are currently 93 United States Attorney’s Offices, one for each of the 94 federal districts except for Guam and the Northern Marianas where a single U.S. Attorney serves both districts. The main duty of the United States Attorney is to delegate cases in her jurisdiction to “line Assistant United States Attorneys”. While United States Attorneys are political appointees the line prosecutors in the United States Attorney’s Office – called AUSAs -- are generally career Department of Justice employees who continue their service with the office when a new President is elected. Each U.S. Attorney’s office has a “First Assistant United States Attorney,” the right hand of the United States Attorney, who is often a career prosecutor there to aid the U.S. Attorney with the daily functions of the office.

Each United States Attorney’s Office (“USAO”) also has two main divisions - the “criminal division” and “civil division” and as well as smaller subgroups called sections, sometimes including a “healthcare fraud section” or the “general crimes section.””. 

Most AUSAs are hired after spending between four to eight years at a law firm, and have outstanding academic credentials and coupled with solid legal experience before they come to the office. Most AUSAs spend about 5-7 years in the USAO before moving on to other public or private sector work and those who stay longer move up to a supervisory position within the USAO. In smaller districts line prosecutors may reside in the same position for much longer and in larger districts turnover is frequent as the office is generally seen as a revolving door back to large law firms or other government employment. The average AUSA only tries about two cases a year but some have up to five trials a year if they are in the general crimes section and try cases with less complexity.

AUSA’s are guided by Federal law and the “Justice Manual” entitled “Principles of Federal Prosecution” as well as other United States Attorneys memos such as the “Yates Memo” or the “Sessions Memo”. Principles of federal prosecution is by far the most valuable resource to understand a prosecutor’s lateral limits and a good resource for caselaw regarding a particular issue.

Let’s look, for example, at Principles of Federal Prosecution 9-27.220 “Initiating and Declining Prosecution”. This chapter passage is very important for the topic of this book of utmost importance to the core matter of this book because it clearly tells prosecutors how they determine who should be prosecuted and who should remain free from the grip of the federal government:.

“The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.”

You would be shocked to know how many attorneys have never read these vital words.

 And they are the most vital words for a defense attorney seeking to aid their client in avoiding prosecution. We learn so much by carefully reading this short passage about what AUSAs are to consider before initiating a prosecution. Just by incorporating this passage into our defense strategy means  we can speak to the AUSA and their boss in the right tone.

The biggest piece of leverage we have, pre-indictment, is this one simple fact: Prosecutors hate losing. In a big case it could cost them their job. In a smaller case it could certainly cost them their reputation. Losing means that they indicted a defendant that who didn’t need to be indicted. Losing means that they squandered the resources of the federal government on someone who was determined to be “not guilty.” At a a very minimum, that it means that they the prosecutor in question didn’t don’t have the litigation ability to bring a guilty person to justice.

Principles of Federal Prosecution importantly states that in determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh several factors such as federal law enforcement priorities, the seriousness of the offense, deterrent effect on prosecution, the person’s culpability, and the person’s willingness to cooperate. This is because, as the manual states, the Federal government cannot prosecute every federal offense that occurs in its jurisdiction – it must ensure that federal priorities are aimed at protecting the public good and nothing protects the public good less than charging every single person who happens to violate any one of the thousands of laws and hundreds of thousands of regulations on our books.

ABOUT THE AUTHOR

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.