In September 2024, then–Attorney General Merrick Garland addressed the eighty-fifth annual U.S. Attorneys’ Conference.1 Perhaps unsurprisingly, Garland invoked the first such address — the 1940 speech of then–Attorney General Robert H. Jackson, The Federal Prosecutor.2 Garland used Jackson’s famous speech as a jumping-off point to discuss his own contributions to the United States Department of Justice, beginning with his work on the first version of the Principles of Federal Prosecution, first published in 1980.3 As explained by Garland, that work “set out, for the first time in a single authoritative source, a set of principles to guide the exercise of prosecutorial discretion,”4 a subject also at the heart of The Federal Prosecutor.5 Garland also told the assembled Justice Department employees that “the current version of the Principles is now a 23,000-word electronic document enshrined in the Justice Manual.”6 He seemed to be suggesting that was an improvement on Jackson’s work.
I believe that it is not. The concise 1,969 words of Jackson’s The Federal Prosecutor offer a far better approach to improving the inevitable exercise of discretion by federal prosecutors.7 The Principles embody an institutional, procedural approach to guiding — and, ultimately, constraining — prosecutorial discretion: They demand that prosecutors take particular steps and consider particular factors before making particular decisions, often requiring the lawyers actually prosecuting cases to seek approval from one or more higher-ranking officials, particularly political appointees such as U.S. Attorneys and Assistant Attorneys General.8 And the Principles are just one piece of the vast regulatory framework that seeks to restrain and direct today’s federal prosecutors.9 The Federal Prosecutor, by contrast, focuses on individual prosecutors making decisions, urging them to act morally, ethically, and in a way that will earn the approval of their peers and their community.10 For all the obvious limitations of that latter approach, it provides a more realistic — and therefore better — prognosis for maximizing just outcomes across thousands of prosecutors making individual decisions about tens of thousands of cases every year.11
This is in part because regardless whether it is a problem that the federal justice system vests individual prosecutors with broad discretion in particular cases, it is certainly a reality.12 This was Jackson’s central theme. The Federal Prosecutor opens by proclaiming that “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America,” and supports that claim with a daunting list of calamities that a prosecutor may choose to inflict seemingly at will, including “from malice or other base motives,” “if he is that kind of person.”13 Neither Garland nor the Principles deny that in the end, individual prosecutors will make most of the decisions that matter. In his recent address, Garland stressed the Principles’ admission that “[i]mportant though these principles are to the proper operation of our federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of” the prosecutors themselves.14 Whoever you think committed the worst errors of the Justice Department’s last decade, it is unlikely that a better “23,000-word electronic document”15 would have dissuaded them. So if the individual prosecutor is in fact where the battle will be fought, shouldn’t the focus remain there — and not on a set of steps, factors, and approvals that in the end still depend on the individual?
But it is not just that the institutionalist approach of the Principles creates a distraction. It also provides an excuse. The Principles’ institutionalist approach encourages prosecutors to believe that if they follow the specified procedures and secure the right signatures, they have acted properly. That allows individual prosecutors to avoid taking responsibility for outcomes in which they play a crucial part. The Federal Prosecutor does better to place accountability directly on individual prosecutors, even if it mostly does so by demanding that they make decisions based on such amorphous factors as “decency,” “local sentiment,” and those “qualities . . . as elusive and as impossible to define as those which mark a gentleman,” which “those who need to be told would not understand . . . anyway.”16
I attempt to prove this point by contrasting some of those “impossible to define” qualities with the Principles and their practice in the last ten years of the Justice Department — a period that happens to coincide with my tenure there.