Take Care is pleased to present a symposium on Andrew Cohen's important new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford University Press).

Andrew Coan’s Prosecuting the President provides a wonderfully timely primer on the promises and pitfalls of special prosecutors.  If you have lately found yourself seeking historical perspective on the Mueller probe, or a rundown of key legal issues, or just a succinct account of the Nixon Administration’s “Saturday Night Massacre” or Ken Starr’s investigation of President Clinton, then Coan has written the book for you.

One of the book’s central points, with which I strongly agree, is that the rule-of-law norms protected (or not) by special counsel investigations depend largely on political enforcement.  As Coan puts it in the epilogue, the “single overarching lesson” taught by the history of special prosecutors is that “[t]he rule of law is as strong as the American people choose to make it—and no stronger.”

Coan worries that these rule-of-law norms may well weaken.  To date, political incentives have generally supported allowing credible special-prosecutor investigations of executive misconduct.  As Coan observes, however, current trends towards populism and hyper-polarization could easily undermine these incentives. 

In this post for Take Care’s symposium on the book, I’ll just briefly expand on Coan’s theme by highlighting one relevant feature of our constitutional order that might help reinforce rule-of-law norms, as well as another that could pose increasing challenges.

The helpful feature of our current constitutional order is Congress’s authority to vest particular legal duties in particular offices other than the presidency.  Most relevant here, Congress has in fact vested most authority over federal criminal prosecution in the Attorney General and U.S. Attorneys, not in the president personally.  That is the constitutional reason why Trump cannot simply fire Mueller himself.  He must instead act through his Attorney General, because only his Attorney General has statutory authority over prosecutorial functions.

The Trump era has shown again and again how important this particular limitation on presidents can be.  It matters that presidents often must act through Senate-confirmed officers.  Under normal circumstances, of course, the key officials in an administration will do what the President wishes.  But insofar as the legal responsibilities in question are ultimately theirs and not the President’s, office holders can resign or force the President to fire them rather than do something they consider illegal or unwise.  Even if the President ultimately gets his or her way, resigning or being ousted in this way can elevate an issue’s salience and bring greater political pressure to bear on the President.

By facilitating this “fire alarm function” of office holding (as I put it in an earlier post), Congress’s authority to structure offices can provide an elegant means of politically enforcing basic governing norms.  As we saw this week in the confirmation hearings for Attorney General nominee William Barr, it can also enable Senators to extract promises from individual office holders that the President himself or herself would not likely provide.

For all these reasons, although much scholarly attention has focused on whether Congress can limit removal of prosecutors (a point Coan ably addresses), it may be that Congress’s authority over different offices’ duties is ultimately more important.  That authority is important here, however, principally because it may facilitate enforcement of political norms surrounding prosecutorial conduct and the rule of law.  If those norms themselves collapse, the structure of office-holding won’t restore them; fire alarms only help if the fire department comes.

That concern, in turn, brings me to a second, more troubling feature of our legal order:  our legal system’s heavy reliance on prosecutorial discretion.  Under our system of criminal justice, the letter of the law sometimes sweeps beyond what the public likely wishes in practice to be prohibited and punished.  Congress can enact such laws, and thus give prosecutors leverage against genuinely culpable defendants, precisely because it expects that prosecutors will exercise judgment and restraint in deciding which technical violations are worth pursuing.

As Coan discusses, this legal structure can run into trouble with special prosecutors.  Charged with pursuing only a single case or set of cases, special prosecutors can lose perspective and pursue cases an ordinary prosecutor wouldn’t.

But the trends toward populism and polarization that Coan highlights might create an even deeper problem.  As public perceptions of legal issues grow increasingly partisan, special prosecutors may lose their capacity to credibly resolve questions about governmental wrongdoing:  whether they chose to pursue charges or not, one segment or another of the public may doubt that their discretionary judgments were principled rather than partisan. 

Even worse, for both special and ordinary prosecutors alike, political incentives might cease to reward neutral prosecutorial decision-making and instead encourage more or less deliberate partisanship—pursuing the other side’s technical violations while turning a blind eye to your own.  Weaponizing our discretionary system of criminal justice in this way could have quite alarming consequences.

For now, our country’s norm of apolitical law enforcement seems to be holding, in part because the structure of office-holding has enabled appointment of widely respected figures like Robert Mueller to key posts.  But how long will it last?  A key question, helpfully highlighted by Coan’s book, is whether our country will retain its historic political commitment to apolitical law enforcement.  To paraphrase the elegant concluding passage of Coan’s book, we may well end up with the law enforcement norms “we deserve,” so “[l]et us choose wisely.”

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