The Volokh Conspiracy

I am happy to pass along a guest post from Professors Bruce A. Green and Rebecca Roiphe, who are experts in the ethical standards for prosecutors. They wrote about a recent case from Santa Clara, California, in which a judge disqualified District Attorney Jeff Rosen from prosecuting pro-Palestinian protestors who occupied the Stanford University.

When New York Attorney General Letitia James was campaigning for office, she called Donald Trump an "illegitimate president" and vowed to investigate him, his family, and anyone in his orbit. New York District Attorney Alvin Bragg was less explicit. While he emphasized his experience investigating Trump's family and promised to continue his predecessor's investigation into Trump, he also stated that he would follow the facts and law. Courts allowed James and Bragg to oversee cases against Trump, despite the fact that Trump himself along with some observers used these statements to claim that they were politically motivated.

In contrast, a California state judge recently concluded that an elected prosecutor went too far in campaigning for office and could no longer be trusted to make prosecutorial decisions free of political bias. On May 7, a Santa Clara County judge disqualified District Attorney Jeff Rosen and his entire office from prosecuting pro-Palestinian protestors who occupied the Stanford University President's office in 2024, citing campaign statements Rosen made the previous December while the case was pending. Specifically, Rosen proclaimed his commitment to the State of Israel and the Jewish people and included a link to information about the prosecution.  According to reporting, the judge found it problematic that Rosen had referred to the protests as antisemitic even though the individuals were not charged with hate crimes.

Local prosecutors are often elected, so their political engagement is unavoidable. Although prosecutors are not expected to be as disinterested as judges, they are not supposed to have a political axe to grind when they decide whom to investigate and prosecute. This raises the question of how elected prosecutors can properly campaign for office without jeopardizing public faith in high profile prosecutions.  What sort of statements provides appropriate information to the electorate and which cross a line?  Which campaign messages warrant disqualification because the prosecutor will appear to have prejudged the case before reviewing all the evidence? The law is unsettled and varies among different jurisdictions. There are, nonetheless, certain principles that ought to guide elected prosecutors, allowing them to communicate their priorities to the public without expressing prejudice. When they come close to the line, courts should use disqualification sparingly, reserving it for cases of clear bias.

Elected prosecutors are expected to implement the priorities and values of the community, and so voters are entitled to know where candidates stand on certain issues. For example, D.A. Rosen's statements about fighting antisemitism are not only permissible but also appropriate. If the community wants its elected prosecutor to protect the Jewish community, they know that Rosen is on it. But commitments to prosecute particular cases and pursue particular individuals are problematic because they might reflect actual bias and undermine public faith in the ultimate prosecutions. It was unclear whether the link on Rosen's campaign page or his fundraiser emails crossed this line, and the trial judge had considerable discretion to make that call based on the facts presented by both sides.

Courts rarely find that prosecutors' statements on the campaign trail are such obvious expressions of bias against a particular individual that the prosecutor cannot be trusted to make decisions in the case based on the facts and the law.  Unlike other officials, who represent their constituency's policy interests, prosecutors have a duty to seek justice. While this may seem like a vague mandate, it is not meaningless. Prosecutors are required to protect the innocent, prosecute the guilty, treat similar cases similarly, and seek proportionate punishment.  Sometimes, this requires resisting, not complying with, popular sentiment.  Courts generally assume prosecutors will abide by this obligation even in high-profile or politically charged cases, but they police the outer limits.

Campaign statements that reflect a willingness to cave to public pressure, or to compromise these professional obligations for popularity, are troubling.  Even if the prosecutor would act independently once elected, these sorts of statements might well lead the public to lose faith in the elected prosecutor's decision-making.  Even if we take Alvin Bragg at his word that he would follow the facts and law, his public statements touting his past cases against Trump and his family might give the public pause. They provided fodder to Trump's sympathizers, including in Congress, who questioned the validity of the charges Bragg's office brought against Trump.  The cost to the legitimacy of the system is itself concerning, even if prosecutors live up to their professional obligations.

The question remains whether trial courts can and should do anything to address this problem.  As we have previously discussed, courts have varying degrees of discretion to disqualify elected prosecutors based on conflicts of interest.  In Texas, a trial judge may disqualify a prosecutor only if the "conflict rises to the level of a due-process violation," whereas California courts take a much broader view of their power. But even in California, courts are hesitant to disqualify an elected prosecutor, thereby depriving the electorate of its chosen representative.  All prosecutors have beliefs and personal ambitions, and courts can do little to address these even if they could interfere with impartiality.  For example, a court would likely disqualify a prosecutor who obtained a book or movie contract regarding a pending case but can do little about prosecutors' general desire to be associated with a high-profile case and to enter the public spotlight.

If the prosecutor in the Santa Clara case had done nothing more than vow to oppose antisemitism and to protect the Jewish community from criminal attack, there would have been no plausible ground to disqualify him. Prosecutors, like judges, are expected to be able to put aside even strongly felt ideological or personal beliefs to pursue justice in individual cases. The fact that Rosen is personally committed to the state of Israel, that he equates anti-Zionism with antisemitism, or antisemitism with anti-Americanism, are all beside the point. Our system assumes he can be fair in individual cases, even when they touch on these topics.

To the extent that Rosen's campaign material and fundraiser emails addressed the pending case against the protesters and implied that he had some animus toward the defendants in this case or had prejudged how to handle the case before reviewing the evidence, then the judge's decision to disqualify Rosen would make more sense.  The trial court in Rosen's case considered an appellate decision from four years earlier, in which the elected prosecutor of San Luis Obispo was disqualified from prosecuting a Black Lives Matter protester after the prosecutor successfully campaigned based on opposition to that movement.  The appellate court upheld the disqualification decision, endorsing the trial judge's observation that while defendants are not "entitled to a prosecutor to which they are politically or socially or ideologically aligned," they are "entitled to a prosecution not clouded by political or personal advantage to the prosecutor."  This case is an unusual attempt to rein in political bias, but perhaps reflects a growing desire to protect the legitimacy of prosecutions in the face of growing allegations of weaponization.

The lesson is that candidates for office as a prosecutor, like judges, should keep their own counsel if they have views on pending cases. This may not be easy, as the public often focuses disproportionately on high-profile investigations. Aspiring district attorneys can address the policies implicated in these cases but should otherwise confine themselves to discussing their views of criminal law policy and their approach to prosecution in more general terms. Adhering to these guidelines is especially important as the public grows increasingly skeptical of disinterested prosecution.