Introduction

Scholars, politicians, and prosecutors themselves have repeatedly maintained that federal prosecutors have vast independence when carrying out their jobs. Despite this, we argue that federal prosecutors are constrained by the federal and local political environments in which they serve. U.S. Attorneys, the chief federal prosecutors for the 93 federal judicial districts around the country, are selected through a politically driven appointment process and operate within the purview of the Department of Justice, an executive branch agency. Federal prosecutors are led by the U.S. Attorney General, a presidential appointee and high-ranking member of the president’s cabinet. And U.S. Attorneys are invested members of their local community and are likely to be mindful of those preferences when making prosecutorial decisions. As a result, we should expect to find political influence at every stage of a U.S. Attorney’s service. The chapter closes with a preview of the full book.

Confirming U.S. Attorneys

In this chapter, we explore the selection and appointment of federal prosecutors. We review the historical development of the Senate confirmation process for U.S. Attorneys, emphasizing that these officials are a rare federal office in which all three branches of government play a role in the staffing process. We then turn to an empirical examination of how politics plays an important role in determining whether U.S. Attorney nominations are confirmed by the Senate as well as how long it takes to receive confirmation. We reveal wide disparities in the extent to which Democrat and Republican Administrations have valued demographic diversity among federal prosecutors. Moreover, we demonstrate that, while presidents nearly always succeed in their nominations of U.S. Attorneys, confirmations are speedier and more likely to be successful when the president and Senate are ideologically aligned and when the president enjoys widespread popularity.

Theorizing Political Responsiveness in Prosecutorial Decision-Making

This chapter details our theory for why we should expect the priorities and preferences of the president, Congress, and a U.S. Attorney’s local public to affect prosecutorial behavior. We argue that principal-agency theory provides a useful tool to understand how political principals like the president and Congress can influence U.S. Attorney decision-making. We expect that presidential rhetoric and congressional hearings on crime-fighting priorities will provide important, meaningful signals regarding these principals’ priorities and that federal prosecutors will adjust their behavior depending on the strength of the signals they have received from their principals. Additionally, we anticipate that U.S. Attorneys will be mindful of their local public’s preferences because they are often drawn from the district in which they serve and will continue to work in the district when their tenure ends. We also introduce the empirical measures used to capture political superiors’ communication to federal prosecutors that we rely on in the remainder of the book.

The Charging and Bargaining Decisions

This chapter examines U.S. Attorneys’ decisions regarding charging and bargaining with federal criminal defendants. Based on our theoretical expectations about the importance of political responsiveness in prosecutorial decisions, we expect that prosecutors will be less likely to demonstrate leniency in providing charge reductions and offering substantial assistance downward sentencing departures when their political principals and local public send strong signals regarding their prosecutorial priorities for a given area of crime. We test this expectation empirically, relying on DOJ and U.S. Sentencing Commission data on federal violent crimes. We find evidence that political responsiveness helps drive prosecutorial behavior for both charge reductions and substantial assistance departures.

Criminal Asset Forfeiture as a Political Tool?

When do U.S. Attorneys use their powers to seize the assets of criminal defendants? After introducing federal criminal asset forfeiture, the chapter details the close connection between criminal forfeiture and prosecutors’ political motivations by tracing the evolution of forfeiture policy in federal laws and Supreme Court opinions. To examine how presidential and congressional signals affect prosecutors’ decisions in this domain, we analyze criminal forfeitures in 89 federal districts from 1996 to 2013. As was the case with other prosecutorial decisions, our results indicate that criminal forfeiture serves as another important way that U.S. Attorneys respond to political signals from political superiors on the importance of prioritizing the fight of federal crime. We conclude by comparing criminal forfeitures to civil asset forfeitures, suggesting that federal prosecutors and the DOJ have largely replaced controversy-prone civil asset forfeitures with their less controversial cousin.

Conclusion: The Political Prosecutor Today and Tomorrow

We conclude the book by summarizing our key analysis and findings and drawing general conclusions about the expansive role that politics plays in the administration of federal justice. In doing so, we reflect on the broad conclusions about how political factors affect federal prosecutorial staffing and decision-making. We examine continuity and change in these themes during the Trump Administration and speculate about these trends in the coming years. We also discuss opportunities for further research and potential reform, arguing that the empirical study of prosecution is a topic ripe for further inquiry by those interested in the law and politics of the U.S. federal government, the states, and legal systems around the world.

Departures and Removals

Why do U.S. Attorneys leave office, and what do they do when they finish their tenure? Federal prosecutors serve at the pleasure of the president and can be dismissed using a president’s removal power. Analyzing data on U.S. Attorneys since the Reagan Administration, we demonstrate that, aside from a routine turnover of U.S. Attorney positions at the beginning of a new administration, presidents rarely fire U.S. Attorneys. When presidents remove chief federal prosecutors in the middle of their term, they typically pay great political costs to do so. We further follow these U.S. Attorneys’ careers—to Congress, the bench, and the governor’s mansion—after they leave office, illustrating that U.S. Attorney positions serve as a springboard for many ambitious politicians to seek higher office. In this way, presidential selections of federal prosecutors have long-lasting effects on American politics.

To Prosecute or Not: Prosecutors as Agenda Setters

In Chapter 6, we examine the highly discretionary decision of federal prosecutors to bring or decline to bring prosecutions in individual criminal matters. This is a critical agenda-setting decision for the criminal justice system: when a prosecutor declines to bring a prosecution, no further action is taken against a suspect. Despite the importance of these decisions, there is also no formal oversight mechanism in place for individual federal prosecutorial choices to pursue or decline prosecution. After examining the descriptive data and underlying policies on federal declinations, we present an empirical test of how presidential, congressional, and local public political factors affect the decision to prosecute or decline to prosecute federal criminal matters. To do so, we analyze data containing nearly 200,000 federal criminal matters from 1996 to 2011 involving violent crime. Our results reveal sizable political effects on whether U.S. Attorneys bring violent crime prosecutions.

Federal Prosecution Yesterday and Today

What function do federal prosecutors play in the modern political system, and how has this role changed over time? In this chapter, we explore the historical evolution of federal prosecutors and the DOJ (and its predecessors) and review the organization of the modern DOJ. We provide evidence that politics and the administration of federal justice have always been tightly intertwined. Moreover, the enlargement of federal law since the Civil War has brought with it the an increase in the size of the federal prosecutorial machine, the DOJ, and the role of the U.S. Attorney General. Using data from the DOJ, we illustrate the growth of the federal prosecutorial machine and discuss its ramifications for the role of the U.S. Attorney in the modern political system.