Is it legal for the President of the USA to direct an official of the DOJ (say, the Director of the FBI) to drop an investigation, as an exercise of prosecutorial discretion?

This is the case being made by Andrew McCarthy:

[T]he president absolutely has the authority to exercise prosecutorial discretion.

A legitimate exercise of executive power cannot be corrupt. A president does not corruptly impede an investigation by deciding that the equities weigh in favor of halting it. That is a decision the president gets to make. Source

Clearly, there is some special pleading going on there. But I am wondering whether Mr. McCarthy is correct on a point of law.

  • 1
    "Special pleading" puts it lightly. Any reasonable definition of corrupt must necessarily include the order to cease an investigation which is likely to, or already has, affect the power or legitimacy of the party giving such order, in order to avoid said effect. Whether the order is corrupt or legitimate is only decided by that party with the authority to bring and consider any charges of corruption or malfeasance in office, and I see nothing to suggest this has occurred. – Nij Jun 9 '17 at 8:30
  • 1
    @Nij Well, I am not asking whether this specific instant was "corrupt". I am wondering whether the POTUS really can direct prosecutions. I always assumed he could not. – Felix Goldberg Jun 9 '17 at 8:53
  • 1
    Technically, he can give an instruction with the same effect, or fire whoever's not doing it until the next one does what they're told. It's a fiddly bureaucracy thing, not enough time to doublecheck the details and "chain of command" as such. – Nij Jun 9 '17 at 12:09
  • 1
    Certainly, the President working with the AG can set broad outlines for prosecutorial priorities. The issues get fuzzier at involvement in particular cases and especially in particular cases involving senior figures in the administration. State ad local governments have separately elected AGs and DAs so the internal conflict issue comes up much, much less often. – ohwilleke Jun 9 '17 at 14:49

Mr. Comey answered this in his testimony.

LANKFORD: Okay. Fair enough. If the president wanted to stop an investigation, how would he do that? Knowing it is an ongoing criminal investigation or counterintelligence investigation, would that be a matter of going to you, you perceive, and say, you make it stop because he doesn't have the authority to stop it? How would the president make an ongoing investigation stop?

COMEY: I'm not a legal scholar, but as a legal matter, the president is the head of the executive branch and could direct, in theory, we have important norms against this, but could anyone be investigative or not. I think he has the legal authority. All of us ultimately report in the executive branch to the president.

LANKFORD: Would that be to you, or the attorney general or who?

COMEY: I suppose he could if he wanted to issue a direct order could do it anyway. Through the attorney general or issue it directly to me.

This issue also came up in United States v Texas.

The obligation to refrain from interference with the FBI is a norm, not a legal requirement.

And, like many executive powers, an act that is sometimes legally permitted can become illegal given an improper motive. It is also possible for Congress to find legal acts to be untenably corrupt.

| improve this answer | |
  • 2
    There is a distinction between prosecutorial discretion, in general, and using prosecutorial discretion to interfere with an investigation of anyone internal to the federal government and especially anyone internal to the White Office office or cabinet. Also, there are statutory and regulatory limits and not merely constitutional ones that this answer doesn't throughly rule out. – ohwilleke Jun 9 '17 at 14:47
  • @ohwilleke Could you please elaborate on those limits? Thanks! – Felix Goldberg Jun 10 '17 at 2:26
  • Congress can certainly claim that the motives were corrupt, but since the investigation conducted by the FBI is conducted with certain goals in mind (counterintelligence, law enforcement, etc.) and not for the purposes of simply dotting the i's, a President who believes a certain individual has been "punished enough" would seem to have full authority to stop an investigation expressly conducted for the purposes of determining whether a certain individual should be punished for breaking laws. – grovkin Jun 10 '17 at 3:23
  • @grovkin. My answer doesn't preclude that conclusion. – Elena Jun 10 '17 at 3:33
  • @Elena, no your answer doesn't preclude that conclusion. But it does state (in the last paragraph) that Congress may elect to reach the conclusion that such awkward attempts at suggesting prosecutorial discretion would rise to a level of being corrupt. I was pointing out that if Congress were to reach such a conclusion in this case, it would do so without cause. – grovkin Jun 10 '17 at 3:44

Harvard law professor Dershowitz supports the view that the President has the authority to direct the FBI to start or stop a certain investigation.

Arguably, that's why the office of special prosecutor was created. A President cannot direct lines of inquiry of a special prosecutor (yes, yes, he can find himself an AG who will fire the special prosecutor, as Nixon did, but the specific power which he doesn't have is directing his line of inquiry).

| improve this answer | |
  • So the idea of this argument is that the special prosecutor is essentially a contractor? – Felix Goldberg Jun 10 '17 at 7:15
  • @Felix Goldberg, that's an interesting take on it. He has unlimited budget and the only check on his power is the ability to fire him or refusal to enforce his demands (subpoenas and so on). So I guess, functionally, he is a contractor who can only be fired but cannot be directed to act. I have given some thought to whether the request (made of Rosenthal by a senator on 6/7/2017) to make Muller immune from being fired would create a temporary royal though. With unlimited budget and no power to remove him from office, it would seem so. – grovkin Jun 10 '17 at 8:08

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.