We propose the creation of a Prosecutor Jury—a mechanism designed to balance the need to hold politicians accountable for their crimes, and the need to avert weaponized prosecutions that target political enemies. When prosecutorial decisions raise acute concerns of partisan bias, we argue that prosecutors should seek an indictment only if they can first persuade a super-majority of a politically-balanced panel of former U.S. attorneys. We propose that the Department of Justice randomly select ten former prosecutors nominated by Democratic Presidents and ten former prosecutors nominated by Republican Presidents. The Department should seek a grand jury indictment only if at least two-thirds of these former prosecutors agree than an indictment is warranted. We recommend that the Department apply this framework to decide whether to prosecute presidential candidates, members of Congress, candidates for federal offices, and federal judges. Finally, as a simulacrum, we applied our framework, and conducted surveys of former U.S. Attorneys to assess whether President Donald Trump should have been indicted, yielding fascinating results – including substantial bipartisan support for his Florida indictment. We believe that Prosecutor Juries have the potential to ensure that no high officer is above the law, nor laid low because of partisan machinations.
Citation
Ian Ayres & Saikrishna Prakash, How to Legitimate the Prosecution of Politicians (2023).