As with the English Civil War, our own divides will not be resolved intellectually but through politics.
I have not fully studied this issue, but I have reviewed much of the literature and I am puzzled as to why people believe that the President enjoys any constitutional power of prosecutorial discretion. Where does it come from? What are the original materials that support it?
The Congress ordinarily has a power to mandate the execution of a law. Judge Kavanaugh writes that “[p]rosecutorial discretion does not include the power to disregard other statutory obligations that apply to the Executive Branch, such as statutory requirements to issue rules, or to pay benefits, or to implement or administer statutory projects or programs.” And certainly this is correct. It would be very surprising if the President could choose not to pay someone their social security benefits. If Congress passes a law that mandates the closing of a prison, that is required. If Congress passes a law that requires the executive to issue a particular regulation, it must do so.
So what is different in cases of prosecutorial discretion? (Before exploring this question, let me add that one can draw a distinction between federal civil laws and federal criminal laws. Are people arguing for prosecutorial discretion as to criminal actions only or also for civil actions? It is not clear what they arguing, but the arguments might differ somewhat. For now, I will largely focus on criminal violations.)
If the President is required to enforce other federal laws, then why is there said to be prosecutorial discretion for criminal laws?
One argument, made by Judge Kavanaugh, is that the pardon power supports such discretion:
The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. . . . In light of the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. As has been settled since the Founding, the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial. So it would make little sense to think that Congress constitutionally could compel the President to prosecute certain offenses or offenders, given that the President has undisputed authority to pardon all such offenders at any time after commission of the offense.
Well, maybe, but I think the argument goes in the other direction. The pardon power and the power of prosecutorial discretion are distinct powers. That the Constitution gives one does not mean it gives another. If the President wants to protect an individual from prosecution, then he must actually exercise the pardon power.
This argument is reinforced by the fact that there was private prosecution of crimes in both England and in the United States at the time of the Constitution. Perhaps the executive could exercise the pardon in those cases, but that does not mean he had the power to exercise prosecutorial discretion.
(In Part II tomorrow, I will discuss a second argument made by Judge Kavanaugh.)