1

Suppose that the U.S. Department of Justice (DOJ) has a belief or opinion about what the proper interpretation of a certain statute or Constitutional provision is, and that they have formalized their opinion on this matter in a memo produced by the DOJ's Office of Legal Counsel (OLC). My question is, can a federal prosecutor, i.e. a prosecutor working for the DOJ, go against such an opinion of the DOJ? Are there DOJ rules or regulations which prohibit this, and would a prosecutor who went against an opinion of the DOJ be subject to disciplinary actions?

If there are such rules or regulations, do they apply to a Special Counsel?

By the way, this question was inspired by my Politics.SE question here, which is related to an OLC memo that states that the DOJ does not have the power to indict a sitting President. I was asking about whether if a federal prosecutor tried to pursue such an indictment anyway, if it would run afoul of DOJ rules and regulations. But that got me thinking about going against OLC memos in general.

2

No

Federal prosecutors are representatives of the Attorney General of the United States and act on his/her behalf: not on their own account. From the DoJ website:

This Act established the Attorney General as head of the Department of Justice and gave the Attorney General direction and control of U.S. Attorneys and all other counsel employed on behalf of the United States.

A prosecutor who willfully ignored the direction of the DoJ acting for the AG is in breach of their duties as an employee and subject to whatever disciplinary action seems appropriate - this would probably result in them looking for another job.

One would hope that the AG would listen to well-reasoned and polite dissent from a prosecutor and might be convinced to change their mind but if they don't the prosecutor has two options: follow their direction or resign.

  • But do you know if there are specific rules or regulations that say that OLC memos are binding on federal prosecutors? Also, does any of this change in the case of a special counsel? – Keshav Srinivasan Jun 20 '17 at 2:17
  • "Special council" are still "U.S. Attorneys and all other counsel employed on behalf of the United States" – Dale M Jun 20 '17 at 2:21
  • At a practical level, it isn't quite so straight forward, because an Assistant AG is deemed to be the agent of the U.S. and will generally bind the U.S. if no one else does something before it is too late, and because it is possible that the obligation of the AAG to the Court may create a conflicting duty. Certainly, however, an AAG could be fired (and indeed probably would be if flagrant enough) for defying a Justice Department policy and a superior might convince a court to allow amendment of a pleading filed in defiance of such a rule. Also, special counsel might implicitly be more free. – ohwilleke Jun 20 '17 at 3:48
  • @ohwilleke sure, but that's true of any employee/agent - a principal cannot disclaim responsibility even if they exceed their authority unless the other party(s) knew the authority was being exceeded. – Dale M Jun 20 '17 at 4:47
  • @DaleM But, it matters a lot in the context of the question. DOJ policies are not self-executing and can be (and are) routinely ignored without consequences on a day to day basis. There are not just two options. There are three: follow their directions, don't follow their direction, or resign. Option two is chosen on a routine basis and doesn't always have consequences. – ohwilleke Jun 20 '17 at 18:22

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