Thanks to Stephen Henderson for this opportunity to do a guest post about my latest law review article, Faithless Prosecution.
As a former prosecutor and someone who has written a lot about prosecutors and prosecutorial ethics, I thought it made sense to write something about the unusual wave of partisan prosecutions coming out of the Department of Justice. This article is the result. Here is the abstract:
In Fall 2025, Donald Trump publicly urged the Department of Justice (DOJ) to initiate prosecutions of his political foes. This disturbing directive may signal the beginning of a new norm, rather than a temporary break in the old one. Trump’s interference with DOJ independence is inconsistent with the practices of Republican and Democratic administrations over the past fifty years. But the DOJ’s acquiescence models the “unitary executive,” a theory of constitutional law that has become popular with legal influencers, including Justices on the Supreme Court.
Left unchecked, these developments are poised to add federal prosecutions to the toxic stew of American politics. And while Congress shows little interest in intervening, judges possess limited tools to do so. “Selective” and “vindictive” prosecution doctrines forbid a narrow set of prosecutions but these undertheorized doctrines, anchored in the Due Process and Equal Protection Clauses, only tangentially address the problem of a politicized DOJ.
To counteract the politicization of federal prosecutions, this Article urges the courts to recognize a new doctrine anchored in a distinct constitutional provision. Article II, Section 3 states that the President “shall take Care that the Laws be faithfully executed.” This provision is rarely invoked and somewhat obscure, but it offers one clear and enforceable command: when a President intervenes in individual law enforcement decisions, the President must act in good faith. Overruling career prosecutors to initiate cases against political enemies is the opposite of taking care that the laws are faithfully executed. It is “faithless prosecution,” and should be voidable in the courts.
The latest draft is available via SSRN here.
Comments welcome!
Leave a Reply