A Trustworthy Executive Branch Requires a Trustworthy President

Both instances of executive decision were baffling to some: The indictment of McDonnell relied, in the words of Chief Justice John Roberts, on “the Government’s boundless interpretation of the federal bribery statute”. And the decision not to press charges against Clinton struck many as suspect, particularly given the Obama administration’s eager prosecution of others who have mishandled state secrets.

The reality is the executive branch has an enormous amount of discretion over whom to prosecute and whom not to prosecute: federal laws and regulations are broad enough that an abusive executive could launch prosecutions of almost anyone. The legal scholar Ilya Somin notes that, “given the current enormously broad scope of federal law, almost everyone has run afoul of it at one point or another. No president can target more than a small fraction of offenders. He or his subordinates must decide which few will be the ones they go after, which in turn creates tremendous space for executive discretion”.

Glenn Reynolds, a law professor at the University of Tennessee, similarly argues that “the result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character.” This inevitably opens the room for the politicization of investigations.

“Most of the time,” says Reynolds, “prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice. Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges…”

What would a politically motivated prosecution look like under a President Trump or Clinton? It might look quite a bit like the prosecution of McDonnell—quid pro quo corruption is illegal and, under the definition prosecutors used to charge McDonnell, “nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo“, in the words of Justice Roberts. There are thousands of vaguely written federal statues that could be exploited in just this way—using liberal constructions of poorly defined terms to implicate virtually any public official. Or, as in the Clinton case, the president could choose to interpret a statute narrowly and decline to prosecute a political ally—or could decide that a prosecution isn’t worth its limited resources. The decision not to prosecute is made routinely, by dozens of federal agencies, and the executive branch has a broad degree of latitude in determining which cases to pursue.

Or perhaps a President Trump or Clinton would go after a politically disfavored business by taking advantage of the sprawling regulatory apparatus the executive branch oversees.

“If there were a President who wished to pursue vendettas,” argues economist Tyler Cowen, “the regulatory state would be the most direct and simplest way for him or her to do so. The usual presumption of ‘innocent until proven guilty’ does not hold in many regulatory matters, nor are there always the usual protections of due process.”

Law professor Ronald A. Cass writes that “the field of regulatory crimes has exploded over the past few decades, with estimates of the number of criminal provisions and criminally-enforceable regulations reaching into the hundreds of thousands…Virtually all commentators, including those who support the current rules on prosecution of regulatory crimes, recognize that the range of regulation is so vast and the regulations themselves are so difficult to know that the prosecution of these crimes (either in the criminal courts or through pursuit of civil fines) is inevitably a highly selective matter.”

Cass points to the example of Arthur Andersen, the major accounting firm charged with witness tampering in 2002 in the aftermath of the Enron scandal. Andersen, which had served as the auditing firm for Enron, was guilty of nothing more than destroying documents in compliance with its own long-standing document retention policy. The Supreme Court unanimously reversed Andersen’s conviction for obstructing justice in 2005, but the damage had been done and the company was essentially dismantled for lack of clients. “Rather than a step in the direction of assuring greater fidelity to accounting standards,” writes Cass, “Andersen’s prosecution instructed the business community that federal law enforcement officials could and would issue a corporate death sentence if they chose.”

The unpleasant reality of American politics is that cases like the McDonnell indictment
or the Arthur Andersen conviction, fall well within the existing powers of the executive branch. The existing scope of federal laws and regulatory provisions is broad enough to potentially incriminate an immense array of public officials, business leaders, and even private citizens. And a prosecution doesn’t have to be successful to derail a life or a career. Just ask McDonnell or any former executive at Arthur Andersen.

In the long term, it may be possible to do as Ilya Somin or Glenn Reynolds propose and rein in the troubling scope of much federal regulation and legislation. But for the foreseeable future, the only sure defense America has against capricious prosecution is a trustworthy, principled executive branch—and that requires a trustworthy, principled president.

Max Bloom is a student at the University of Chicago and an intern at THE WEEKLY STANDARD.