Geo. Washington L. Rev. (Forthcoming 2005)


Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite the lack of statutory authority over the district attorneys, early presidents directed the district attorneys in all sorts of prosecutorial matters. As authority for their superintendence, presidents cited their constitutional power over law execution. Moreover, there is no evidence that the statutes authorizing qui tams were meant to preclude presidential control over the qui tam suits. If English practice is any indication, the chief executive was understood to enjoy a great deal of control over popular prosecutors. Though there are many reasons to divorce the president from prosecution, this scheme does not have the imprimatur of early constitutional history. As a matter of the Constitution’s original understanding, constitutional text, structure, and history establish that the President is the constitutional prosecutor of all federal offenses whether prosecuted by official or popular prosecutors.


Constitutional Law | Jurisprudence | Law and Politics | Public Law and Legal Theory

Date of this Version

June 2005