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01/08/2022

Seth Barrett Tillman on Impeaching Prosecutors for Non-Prosecution
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Impeaching Prosecutors Who Fail To Prosecute.  From the introduction:

With the election of the Soros-funded prosecutors, and radical policy innovations in prosecutorial discretion, and changed incidence (including increased incidence) in crime, those who (politically) oppose such policies will naturally look to push back against these prosecutors and their policy changes. Some will suggest impeachment as a valid route. I would not support that approach. This is why. 

My discussion is limited to federal impeachment rules—applicable to federal officeholders—which limit impeachment to “high crimes and misdemeanors.” Some states have impeachment rules akin to the federal model, and such states’ impeachment rules will apply to their state officeholders. By contrast, under New York law, which lacks any “high crimes and misdemeanors” language regarding impeachment in its state constitution, the scope of the state legislature’s impeachment power may be considerably wider than Congress’ power under the United States Constitution. And, under the California state constitution, certain county and municipal offices are not subject to impeachment by the state legislature. Thus, elected California county prosecutors may be beyond the power of the California state legislature to impeach. 

Again, impeachment under the federal model is limited to “high crimes and misdemeanors.” Differences of opinion in regard to best policy, and after-the-fact investigations of the real world consequences which flow from such differences of opinion regarding policy, standing alone, cannot meet the “high crimes and misdemeanors” standard. This is particularly true where the alleged wrongdoer, i.e., the officeholder-defendant, announced his policy positions prior to his appointment or election. 

So, in what circumstances can a prosecutor be impeached under the federal model? There are primarily three situations where impeachment would be appropriate. ...

Most significantly, this point (with which I think some people might disagree):

But even discretion has limits. A prosecutor has limited resources and can choose priorities. A prosecutor can choose to prosecute a crime in particular circumstances—e.g., where the evidence is particularly strong, or where the societal harm caused by the crime is particularly great. But if a prosecutor establishes a policy for his office, e.g., that his office will never bring a prosecution in regard to a particular class or type of crime, then that policy choice would entirely  nullify or suspend a statute. The President cannot do that, i.e., entirely nullify or suspend a statute, and, a  fortiori,  neither can his prosecutors and other appointees. An elected or appointed officeholder’s knowingly embracing such a policy choice—i.e., one entirely nullifying or suspending a statute—would meet the high crimes and misdemeanors standard. Why? A prosecutor cannot make legal what the legislature has determined to be a crime. 

I agree that "prosecutor cannot make legal what the legislature has determined to be a crime." But it does not necessarily follow that a prosecutor cannot refuse to prosecute a particular type of crime (even in its entirety) because the prosecutor thinks resources are best spent elsewhere.  That does not make the criminalized action legal; it just means that (for the moment anyway) there won't be any punishment.  Nor do I see why the Constitution necessarily draws the line between refusing the prosecute a type of crime in its entirely and refusing to prosecute a very substantial proportion of a type of crime.

As Professor Tillman says later in the post, the key question is the interaction between the President's duty to take care that the laws be faithfully executed and the President's executive power of prosecutorial discretion.  It's not clear at all to me how these two should be understood to interact.

Perhaps the answer is that it's up to the House and Senate to decide how much non-enforcement is too much (so, it's a political question).