The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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
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.
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.