Publication Date

2025

Journal

Stetson Law Review

Abstract

This essay is about subordinate prosecutors’ independence to do what they think constitutes “seeking justice” when they perceive that their boss, or their boss’s boss, wants them to do something that is unjust—not illegal, but unjust. Of course, if subordinate prosecutors want to do either what they are told to do or what they infer that a higher-up wants them to do, they can do so, as long as the conduct is legal. Subordinate prosecutors might choose to disregard their own professional judgment of what justice requires because they share their boss’s objectives, because they see conforming as a route to advancement, because they are worried about their job, because they are indifferent, or for other reasons. But if one is assigned responsibility for a criminal investigation or prosecution, when is it permissible to act on one’s independent judgment about what prosecutorial norms require, and when might doing so be a transgression or insubordination? This is obviously a question of importance for federal prosecutors in 2025, given the current administration’s insistence on prosecutors’ loyalty to the president, his administration, and his agenda. But we began asking this question before the 2024 election, and, in our view, the question we ask is important at any time for prosecutors in any prosecutor’s office.

We reject the view that subordinate prosecutors must do what they think their bosses want (and seek to clarify any ambiguity), because they are essentially appendages of higher-ups. We argue that, in many situations, subordinate prosecutors have discretion to do what they reasonably conclude “seeking justice” entails. We explore how that discretion might be exercised when a chief prosecutor’s instructions or expectations are at odds with what we call the “soft law” of criminal prosecution—that is, the collection of professional understandings developed and expressed by judges, the legal profession, and prosecutors’ offices themselves that supplement, and are often less precise than, the legally enforceable law.

Volume

55

First Page

237

Last Page

285

Publisher

Stetson University College of Law

Keywords

prosecutors, subordinate prosecutors, prosecutorial independence, insubordination, professional responsibility, legal ethics, legal norms

Disciplines

Criminal Law | Law | Law and Society | Legal Ethics and Professional Responsibility

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