Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors

This Article discusses the undefined responsibilities of federal prosecutors. For purposes of example, the essay focuses primarily on five situations in which federal prosecutors are often expected to operate "outside" of the rules, including: charging and investigative decisions, discovery, plea bargaining, dealing with the press, and sentencing decisions. While there are "rules" in each of these areas, they take a back seat to the discretionary powers prosecutors are expected to exercise wisely when performing their duties. In judging whether there has been an appropriate exercise of those powers, it is not the rules that will govern society's judgment.

Rather, the collective experience of dedicated and fair-minded prosecutors sets the standards. Part I of this Article discusses the role of the federal prosecutor in terms of what rules dictate, and where they fall short. Part II provides an analysis of where the law is silent, thereby making prosecutorial discretion imperative by focusing on five scenarios in particular. This Article concludes with a proposal of the factors a prosecutor should use in making such decisions.