Separation of Powers

John Marshall Argued for the Independence of Federal Prosecutors

Professor Matthew Steilen points to an interesting letter to St. George Tucker


I think it's relatively commonly believed these days that the President has a great deal of authority of federal prosecutions, even if he should generally abide by a norm of non-interference. This is obviously the view of "unitary executive" types, but even those who question some aspects of the unitary executive thesis have sometimes accepted this as to criminal prosecutions.

One early example I often see cited is Thomas Jefferson's order to the district attorneys to stop prosecuting cases under the Sedition Act, which he believed unconstitutional. Here, for instance, is his explanation in an 1801 letter to Livingston:

the President is to have the laws executed. he may order an offence then to be prosecuted. if he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into legal train. I found a prosecution going on against Duane for an offence against the Senate, founded on the Sedition act. I affirm that act to be no law, because in opposition to the Constitution; and I shall treat it as a nullity wherever it comes in the way of my functions. I therefore directed that prosecution to be discontinued & a new one to be commenced, founded on whatsoever other law might be in existence against the offence.

So I was very interested when Professor Matthew Steilen linked on Twitter to an account of a letter by John Marshall which seemed to disclaim presidential authority, writing: "The laws are made, & those who violate them are prosecuted by the proper officer wo the knowledge or direction of the President."

Neither Professor Steilen nor I had the original text, and the letter was not as easy to find online as Jefferson's earlier letter, so I dug it up in Volume 6 of the Marshall Papers and will copy it below.

For context, this is the year before the Jefferson letter, while John Adams is still President, and Marshall is explaining to his friend St. George Tucker why President Adams is not going to stop a prosecution of a man named Callendar. (Tucker had pointed Marshall to several criticisms of Adams, including one by Alexander Hamilton, that he thought far more scurrilous than what Callendar had written, so he thought it unfair that Callendar should be prosecuted if Hamilton wasn't.)

Here's the letter, with a few key parts bolded:

Washington Novr. 18th. 1800

Dear Sir

I receivd with much pleasure yours of the 6th. inst. I wish with all my soul that those with whom I have been formerly in habits of friendship, woud like you, permit me to retain for them that esteem which was once reciprocal. No man regrets more than I do, that intolerant & persecuting spirit which allows of no worth out of its own pale, & breaks off all social intercourse as a penalty on an honest avowal of honest opinions.

Fennos attack on Mr. Adams I never saw & that of Genl. Hamilton I wish for his sake had never been seen by any person. I have no doubt that it wounds & irritates the person at whom it is directed infinitely more than the Prospect before us, because its author is worthy of attention & his shaft may stick. Whether it is as properly the subject of judicial enquiry is a question on which I have no opinion because I have only given it one hasty reading & that not with a view to such an object. Be this as it may the proceeding, or omiting to proceed against him, can make no impression respecting the character of the executive because that is a subject over which the President exercises no control. The laws are made, & those who violate them are prosecuted by the proper officer without the knowledge or direction of the President. With respect to Mr. Callendar I am mistaken if you & all the world, so far as the circumstances of the case are known, do not concur in the opinion, that nothing can render him an improper object for the punishment of the law but his being below its resentment. On that principle & on that only coud he I think, with any sort of propriety, be recommended for mercy. On that account my own private judgment woud have been against his being prosecuted, but I am not quite sure that it is a sufficient reason for interposing and arresting the course of the law. However this may be I do not think Mr. Adams woud take any step in the case while the election is uncertain. These acts are so often attributed to other than the real motives, that unless there were stronger reasons for them than exist at present, it woud not be adviseable to do any thing til the choice of future President shall be over.

The unconstitutionality of the law, cannot be urgd to the President because he does not think it so. His firm beleif is that it is warranted by the constitution. This opinion is confirmd by the judgement of the courts & supported by as wise & virtuous men as any in the Union. Of consequence whatever doubts some of us may entertain, he who entertains none, woud not be & ought not to be influencd by that argument.

There will be a house of representatives to day. I beleive confidently that an accomodation has taken place with France tho we have as yet no official account of it. I think it is time for peace to be universal. I am dear Sir with much esteem & regard, yours &c.

J Marshall

Now, a few thoughts about the letter.

1, Steilen points out that this letter seems to be neglected in historical debates about the unitary executive (at least, I could find nothing in the law review literature quoting the key passage). If we take some weight from Jefferson's position, we have to consider the weight of the opposing position in the Adams administration. And I think that's true even if we think (as I do) that Jefferson was fundamentally right about the unconstitutionality of the Sedition Act. His rightness on the substantive question doesn't mean he was right about the structural question. Maybe he was, maybe he wasn't.

2, That said, I see some ambiguities in Marshall's position. For after stating that the federal prosecutors operated without "the knowledge or direction of the President," Marshall does seem to anticipate a couple of reasons that the President might nonetheless intercede.

(A) He might be "below [the law's] resentment." I think this means his conduct might have been too minor to actually violate the Sedition Act. Here, Marshall says maybe that's true, but the President isn't going to intercede because of the pending presidential election.

(B) The law might be unconstitutional. Here Marshall says "The unconstitutionality of the law, cannot be urgd to the President because he does not think it so." Well, fair enough!

3, The fact that Marshall entertains these two (and only these two) possibilities after noting the independence of the federal prosecutors makes me wonder if his view was that the decision to institute prosecutions was vested in the US Attorneys, but that the President could interfere if but only he had a legal objection—either the criminal statute was not actually violated or it was unconstitutional.

Now this would actually be consistent with Jefferson's letter, which focused on prosecutions that were "not lawful" on constitutional grounds. And it would operate as a plausible interpretation of the President's constitutional obligation to "take care that the laws be faithfully executed," even though today we might expect the President to be able to supervise even legal prosecutions that he thought unjust or otherwise inadvisable.

Perhaps there is ample other evidence against this view, but I thought it was interesting enough to be worth noting here.

UPDATE: Two more ambiguities, thanks to various readers.

Several readers have suggested that Marshall is not really disclaiming the President's authority over criminal prosecutions, but simply stating that as a practical and factual matter, the President doesn't actively supervise them. Could be.

And several other readers have read "beneath [the law's] resentment" differently than I did, to refer to conduct that does violate the law, but that is sufficiently minor or blameless that it shouldn't be prosecuted anyway. Could be as well.

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  1. “he President has a great deal of authority of federal prosecutions, even if he should generally abide by a norm of non-interference.”
    This is also paralleled in other areas as well.

    POTUS has an implicit “need-to-know” all classified information as he is the primary authority. Yet POTUS almost always chooses not to know some information; for example, it is better that he not know the identities of actual in-place intelligence agents.

    1. it is better that he not know the identities of actual in-place intelligence agents

      Might not that depend on where they are “in-place” ? So if an agent, represented by his chiefs of intelligence as an intrepid, valuable and ingenious fellow, embedded in the heart of Muscovy and privy to all their devious schemes, is actually a minor functionary in a think tank, living in DC, who scrapes his old college drinking pals for gossip – might not the President wish to know this ?

      A President whose faith in the efficiency and veracity of his intelligence services is hovering round the 25% mark, rather than in 90% plus range, might be wise to seek quite a lot of chapter and verse from his intelligence apparatchiks, lest they be pulling the wool over his eyes. Or lest they are in the habit of exaggerating what they know. Or lest they are simply fools.

      Tinker Tailor Soldier Spy experts will know that Karla’s wicked scheme would never have got off the ground if the Minister had had the cojones to say “OK, who EXACTLY is this wonderful new source you’ve got ?”

      1. “might not the President wish to know this ?”
        He might, but he might not. He will know that someone is in place in a general area, but it could be unwise for him to know just who and just where. That is a decision for him to make with the advice of the NDI.

        In the case of information of extreme sensitivity of the source, mostly likely POTUS wants details.

        My only point in my post, is that there are multiple areas in which a unitary executive can in principle intervene or have full knowledge of details and strategies, and many other cases in which he decides that he has no operational need to know

        1. And I agree with your point.

          I’m simply poking and prodding at an old sore – it’s a conventional assertion that the President should not want to know the details of who the spies are, or in Prof Baude’s context, why Mr X is or is not getting prosecuted. Because the President might, in re spies, be a loose tongued drunk, or even the tool of a foreign power. Or, in re prosecutions, he might be a vicious partisan eager to go after his enemies and to let his cronies off the hook.

          These are of course perfectly reasonable points, but on closer inspection they look awfully similar to the sort of self serving arguments that you would expect the nomenklatura to be pushing – in all polities, at all times. “Quis custodiet ipsos custodes ? Why ourselves of course.”

          But what if the intelligence bureaucracy is itself full of leakers and drunks, or idle timeservers ? What if the “independent” prosecutors are not themselves wholly free of malice ?

          It’s easy to see that those who head the intelligence agencies might feel that the President is not the sort of person who ought to be trusted with the nation’s most important secrets. But it’s not obvious why the President should agree with them.

          So I’m merely holding up my hand, lest it be thought that there are no objectors to the mantra that it is very wicked for the President to poke his snout into the business of the Interagency.

          1. Lee,
            I understand your point. Certainly for most POTUS sticking one’s noise in too deeply just does not make any practical sense.
            But the inclination and utility might be very different for a George HW who CIA director than a George W.

    2. POTUS has an implicit “need-to-know” all classified information

      I think a more accurate statement would be that the President is exempt from information security rules. He doesn’t have a clearance either but routinely receives highly sensitive information.

  2. Is “legal train” transcription error, or a term of art I’m unfamiliar with? (The original letter is here, but the word is illegible to me):

    1. 200 years of language evolution. I think “train” now means “process” or “system” in this context. So, “legal train” would be “lawful process”.

    2. Remember that trains had not been invented yet when the letter was written.

      Johnson’s Dictionary:
      “Artifice; stratagem of enticement.”

      1. I believe baggage trains and supply trains were well known in military usage.

    3. I’m inclined to go with Noscitur’s transcription error theory…maybe.

      “train” literally means “something pulled behind” – hence vehicles, and eventually railroad trains. As well as trains of dresses for Queens and brides etc. And hence, metaphorically, other things that are pulled behind metaphorically – like lines of people, who are not physically conected but create a formation that seems like they are; and lines of thought that seem to follow along as if connected by a rope. Nothing new about these metaphorical meanings – the train of of his argument, train of consequences, and so on.

      And so with the flip to the verb – that which follows along in train, is….orderly. Hence the verb “train”‘ acquires a meaning to make orderly, form into a line or structure (real or metaphorical)

      But in Jefferson’s letter : “if he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into legal train” while the first use of “train” makes perfect sense, the second makes no sense at all. The sense of the second alleged appearance of “train” is more like “limbo”, or “deep freeze”. Nothing like a legal train chugging along.

      So it’s probably a transcription error (the second use) even though the shape of the word looks quite like the first use of “train”.

      One possible alternative explanation is that the error is Jefferson’s own. In te hand written letter, the words “put in legal train” (if it is train) are immediately below the words “put into a train which..”

      Could Jefferson just have written the second “train” instead of some other, more apt, word simply because his eye was caught by the words he’d written immediately above and he wrote “train” as his mind had already moved onto thinking about the next sentence.

  3. Irrelevant to Baude’s point but entirely relevant to modern public discourse:

    “No man regrets more than I do, that intolerant & persecuting spirit which allows of no worth out of its own pale, & breaks off all social intercourse as a penalty on an honest avowal of honest opinions.”

  4. what a great find, thanks for this

  5. Interesting. I heard a remark by Sotomayor or Kagan noting that Dred Scott has never been explicitly overturned by SCOTUS. Must the President and DOJ presume that Dred Scott is still in force as and therefore enforce it as the law of the land?

    1. The holding of Dred Scott was explicitly superseded by the ratification of the Fourteenth Amendment, so the answer to your question is “no”.

  6. So the President giving orders to the DoJ is actually not super originalist, eh.

    1. Marshall was not at the Constitutional Convention and played no role in drafting the Constitution.

      1. I would have thought the 13 amendment did it in.

      2. Wouldn’t that make him an even better source for the “original public meaning”, as opposed to the backroom under-the-table what-we-meant-to-read-between-the-lines meaning?

  7. That letter seems open to interpretation. Perhaps Adams merely felt a “hands-off” approach was preferable, as opposed to constitutionally required.

    Perhaps we should have independent prosecutors, but I believe that is clearly not contemplated by the Constitution. The royal prerogative of mercy in England comprised both the pardon power and the nolle prosequi power, and I believe the Founders essentially adopted it in full. If the President can pardon someone before, during, or after a prosecution, it seems axiomatic that he could prevent the prosecution from happening in the first place. Nothing in the constitution suggests the Attorney General should be more “independent” than any other cabinet official. In fact, it suggests the opposite; that, ultimately, one man is in charge of all executive functions: the president.

    Perhaps in recognition of the need for a more independent justice system, I believe that 43 states currently have an attorney general that is popularly elected, and therefore not directly answerable (or removable) to the governor. But it was not initially so, For example, the Massachusetts AG was initially (from 1780) appointed by the governor, but became an elected officer in 1855. Similarly, the New York AG went from appointed to elected in 1847, and in Virginia in 1851.

    1. Yes — I suspect a four-branch system, where law enforcement is separated from other executive activities, with the fourth branch headed by the runner-up of each presidential election (or otherwise guaranteed to be a partisan opponent of the president), would be a salutary arrangement. I think the tension between the executive branches would encourage more active supervision by the legislature, as well.

      But that is not the system our Constitution describes.

      1. Isn’t that similar to the original version of the Constitution where the runner-up became vice president and presided over the Senate?

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