Deputy Attorney General Rod J. Rosenstein Delivers a Constitution Day Address

Remarks as prepared for delivery

Thank you, Jeff, for that kind introduction. I recall an engaging lunch with you a few years ago, when I spoke at your law school in Washington, DC. Your scholarship and collegiality make you a superb choice to lead the National Constitution Center in its non-partisan mission to promote public understanding about our Constitution. This impressive institution keeps the spirit of the founding era alive.

The location of the Center is ideal. It looks out on Independence Hall, where our nation’s founders gathered to write the Constitution during the summer of 1787.

Benjamin Franklin’s house was just a few blocks away. The story is told that a woman named Elizabeth Powel approached Franklin when he was walking home after the Constitutional Convention,

Mrs. Powel asked Franklin what type of government the Founders had created. Franklin replied with these words: “A republic, madam, if you can keep it.”

Mrs. Powel’s question illustrates that it was not inevitable that our nation would begin as a democratic republic.

Franklin’s answer reminds us that it is not inevitable that we will remain a democratic republic.

The Constitution comes with a condition: we need to keep it.

The word “keep,” in modern English, normally means to hold something in your possession: “Here’s a ten-dollar bill; keep the change.”

Keeping something, in that sense, is passive.

But that is not the meaning Franklin intended. He used the word “keep” in the same way that someone today might say, “Keep the Sabbath.” It is an active verb. It means there are things you need to do, if you want to preserve it.

Some people think that it is up to politicians to keep our government. But Franklin spoke to an ordinary citizen — a woman, who at that time did not even have the right to vote. Yet Franklin said it was up to her to keep the republic.

The lesson is that we are all keepers of the republic.

But we often take it for granted. Consider the National Anthem. Francis Scott Key wrote it as a poem, while he watched the Battle of Baltimore during the War of 1812.

Key used the flag flying over Fort McHenry, as a symbol of American freedom. If the flag fell, it would mean that America had been defeated, and liberty was lost.

But Key was on a ship in the Chesapeake Bay, miles away from the battle. When the fighting stopped before dawn, Key could not see the flag. He did not know which side had won.

So the poem begins with a question:
“O say can you see, by the dawn’s early light
“What so proudly we hailed, at the twilight’s last gleaming?”

Today, we sing that line as a declaratory sentence – you can see the flag – but Key’s punctuation conveys a different meaning.

The first stanza of the Star Spangled Banner is not a confident assertion that our flag will always be there. It is an anxious query.

It ends with another question, just as it began. Key asks:
“O say, does that Star Spangled Banner yet wave
O’er the land of the free and the home of the brave?”

Key was not certain whether our flag was still there.

The answer appears only in the poem’s second stanza: the sun rises, and the flag is visible.

Of course, most Americans never hear the second stanza. The ball game starts after the first stanza!

We are so impatient.

But it would surprise Key to hear Americans cheer after the first stanza. He intended it to convey uncertainty and peril.

Two centuries removed from the battle, most Americans ignore the question marks. It does not occur to us to ask whether the flag – and by implication our liberty – has been lost.

But Key lived in a young nation that had won independence only three decades before, and was in grave danger of losing it. Just a few weeks prior to the attack on Baltimore, enemy forces had captured Washington, burned the White House, and raised the British flag over our nation’s capital city.

We should never take our Constitutional freedoms for granted.

Supreme Justice Joseph Story observed that the Constitution is always at risk. Story wrote, “It may … perish in an hour by the folly, or corruption, or negligence of its … keepers, the people.”

The words written in the Constitution by Benjamin Franklin and his contemporaries protect our liberty, so long as we adhere to the rule of law. But the rule of law is not just about words. We need people to keep it.

Judge Learned Hand wrote, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it….”

The rule of law depends upon the character of the people who enforce the law. If they uphold it faithfully, the result will be a high degree of consistency and predictability. Those features build public confidence, and allow our nation to thrive.

The rule of law is not just a feature of America. The rule of law is the foundation of America.

One of the finest defenses of the rule of law appears in Robert Bolt’s brilliant play about Sir Thomas More, A Man for All Seasons. In Bolt’s version, More defends the rule of law in an argument with his son-in-law, William Roper. Roper is angry that More would give the benefit of the rule of law even to the Devil himself.

Using trees as a metaphor for laws, Roper insists that he would cut down every tree if it were necessary, in order to destroy the Devil.

More replies, “Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat?

The point is that if we permit the rule of law to erode because it does not directly harm our personal interests, the erosion may eventually consume us as well. The rule of law is not self-executing. If it collapses – if the people lose faith in the rule of law – then everyone will suffer.

President Trump honors that principle by nominating judges who “administer justice without respect to persons,” and by appointing Department of Justice officials who support the rule of law.

Two weeks ago, Attorney General Jeff Sessions said, “No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law.”

The Attorney General explained, “Societies where the rule of law is treasured … tend to flourish and succeed. Societies where the rule of law is subject to political whims and personal biases tend to become … afflicted by corruption, poverty, and human suffering.”

Tonight, I want to discuss the role of prosecutors in maintaining the rule of law.

One of America’s great Attorneys General, Robert Jackson, once remarked, “The prosecutor has more control over life, liberty and reputation than any other person in America.”

Courts exercise authority to rule on the strength of the evidence and the meaning of the law. But the most significant exercises of prosecutorial power are not reviewable.

Prosecutors have broad authority to decide what crimes to investigate, which people to prosecute, and what charges to file.

In other areas of the law, discretionary decisions may be reviewed to determine whether they were “arbitrary and capricious.” But arbitrariness and caprice are not valid objections to criminal prosecution.

The fact that police and prosecutors have the power to make arbitrary decisions has significant implications. After all, the rule of law is fundamentally about achieving justice by limiting governmental discretion.

To ensure the integrity of the criminal justice system, decisions about which cases to prosecute should be made in a rational way.

Before I turn to that issue, it is important to understand the scope of prosecutorial discretion, in a system of plentiful crimes and limited resources.

In 1940, Attorney General Jackson remarked, “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”

Well, the Department of Justice has expanded far more than ten times in the ensuing 77 years, and so too has the federal criminal code.

Jackson went on to explain that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

In exercising discretion, Jackson said that we should prosecute “the cases … in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”

The first level of discretion is about how to allocate our resources among the various types of crimes. For example, do we increase the number of prosecutors devoted to narcotics cases, violent crime cases, or corruption cases? Do we encourage them to spend time on federal corruption, state corruption, or local corruption? In a system of limited resources, those decisions influence which types of cases get prosecuted.

The second level of discretion is choosing which cases to prosecute within a given category: of all bank robbers, for example, only a fraction can be prosecuted in federal court. Of course, we can proceed in any individual case only if we believe that the defendant is guilty and we expect to be able to prove it beyond a reasonable doubt. But among the many cases that could satisfy that threshold, how do we choose which ones to prosecute?

After resolving the question of whether to charge, prosecutors also exercise broad discretion about which charges to bring.

In the Supreme Court’s 1978 decision of Bordenkircher v. Hayes, Mr. Hayes was charged under state law with forging a check for $88.30. The charge carried a sentence of up to ten years in prison.

The prosecutor made a plea offer, telling Hayes that the government would recommend a sentence of five years. But if Hayes would not plead guilty, the prosecutor threatened to indict him under the state’s three-time loser statute, which carried a mandatory life sentence because of Hayes’s criminal record.

Hayes declined to plead guilty. He was then charged as a habitual criminal, convicted, and sentenced to life in prison.

Hayes argued that the prosecution had unfairly punished him for invoking his right to a fair trial.

The Supreme Court rejected the claim. The Court held that indicting a defendant for a lesser offense and threatening to bring a more serious charge is no different in effect from indicting for the more serious charge in the first place and then offering to reduce it in exchange for a guilty plea.

That kind of plea bargaining is a fundamental aspect of the criminal justice system, the Court held, and a lawful exercise of prosecutorial discretion.

The Department of Justice has guidelines for how to exercise prosecutorial discretion. We call them the Principles of Federal Prosecution.

The Principles were first adopted in 1979 by Attorney General Benjamin Civiletti. The guidelines do not dictate results, but they are useful as a framework for considering why a case does or does not warrant federal prosecution.

The premise of the guidelines is that prosecutors should use rational and objective considerations in selecting which criminals to prosecute.

The guidelines counsel prosecutors to consider three categories of issues: first, the degree of federal interest in prosecution; second, the likelihood of effective prosecution in another jurisdiction; and third, non-criminal alternatives to prosecution.

Defendants who are unhappy with the decision to prosecute them, find little recourse in the courts.

The “selective prosecution” defense generally is the only means for a defendant to get judicial review of the decision to prosecute, but the threshold is extraordinarily high.

The selective prosecution defense gets at that sense of frustration that you may feel when you get pulled over for speeding. Sure, you broke the law. But while you are waiting by the side of the road, hundreds of other speeding cars race by without getting stopped. Has anyone had that experience?

And then you start to think about how other people who change lanes without using their turn signals pose a much greater threat to the public than you did by driving 67 mph in a 55 mph zone. Sometimes you might get angry enough to ask the officer, “Don’t you have any bank robbers to chase?”

There are two thoughts going through your mind.

First is selectivity. Other people are committing exactly the same crime. I am unfairly being singled out.

The second issue is proportionality. Other people are committing worse crimes. The government should not waste its scarce resources on this violation.

The Supreme Court’s answer to both of those complaints is that because there are far more crimes and criminals than there are prosecutors, judges, and jails, the government must exercise discretion about what crimes to investigate and which law breakers to prosecute.

Proportionality is never a basis for a legal challenge to a prosecution. The argument that “I did it — but other people have done worse” does not fly.

The selectivity argument alone also fails. You cannot simply argue, “I did it, but other people did it too.”

The Supreme Court ruled in 1985, in Wayte v. United States, that judges will not consider selective prosecution claims unless the defendant proves that other similarly-situated persons were not prosecuted for the same conduct; and the government was motivated by discrimination based on an impermissible classification.

In the Wayte opinion, Justice Powell explained why courts are ill-suited to review prosecutorial decisions. He described two categories of reasons.

First, prosecutorial decisions are based on factors that are not readily susceptible to the type of analysis that courts are competent to perform, such as the strength of the case; the deterrent value of the case; the government’s enforcement priorities; and the relationship of the case to the government’s overall enforcement plan.

Second, judicial supervision would impose systemic costs. Judicial review of the reasons for a prosecution delays the proceeding; chills law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry; and undermines deterrence by revealing the government’s enforcement policy.

Wayte stands for the proposition that the prosecutor can choose to indict for any good reason or no good reason. He just cannot act for an unlawful reason.

Discretion is inherent in law enforcement. And when someone acts on a matter that is committed to their discretion, the decision is permissible regardless of whether it is wise. So discretion is the power to make a choice that is wrong, in the sense that it is not the objectively best choice.

But when government officials are vested with discretion, they have a special obligation to take care that they do make the objectively best choice.

That requires wisdom.

A Seventh Circuit judicial opinion described the challenge for federal prosecutors with these words: “The Department of Justice wields enormous power over people’s lives, much of it beyond effective judicial or political review. With power comes responsibility, moral if not legal, for its prudent and restrained exercise; and responsibility implies knowledge, experience, and sound judgment, not just good faith...”

Not just good faith. Of course, good faith is important. But the Department of Justice does not measure success by whether we acted with the right motive. Our goal is to make the objectively right choice, based on articulable reasons.

Prosecutors often talk about the value of independence, in the sense that they act without regard to partisan considerations. Independence is like good faith. It is important, to be sure, but it does not guaranty the right result. Independent decisions may be wrong.

The most difficult management challenges for the Department of Justice are prosecutors who act independently and in good faith, but make unwise decisions.

Acting with honor is no substitute for acting with wisdom. It is important to have the right motive, but it is even more important to do the right thing.

The necessary wisdom comes from experience. Some people think we should simply defer to career prosecutors, on the theory that their decisions are not perceived as political.

Deferring to career prosecutors is an easy policy to apply, and it builds goodwill within the office. But deference is the opposite of principle.

The best way to regulate prosecutorial discretion is to require detached review of significant cases by experienced career supervisors who demonstrate wisdom, experience, fortitude, and detachment, with oversight by politically accountable officials. Those supervisors need to provide meaningful scrutiny of proposed prosecutions, and they must not be afraid to say no.

Detachment is critical to making wise decisions.

Judge Learned Hand said, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own, without bias.”

I would add that the spirit of liberty is the spirit that requires the government to introduce evidence that not only proves a criminal defendant’s guilt, but proves it so convincingly that it satisfies a jury of twelve citizens, beyond any reasonable doubt.

Criminal prosecution involves using the power of the government to take away a person’s freedom. We should always exercise that power with care and wisdom.

And we should strive to make our decisions impartially, without regard to political considerations.

The Supreme Court proclaimed in Berger v. United States that the prosecutor’s “obligation to govern impartially is as compelling as its obligation to govern at all.”

To say that we enforce the law impartially does not mean that we enforce it mechanically. It means that we enforce it rationally. Disparate results should be justified by disparate facts.

If prosecutors bring charges that are motivated by an effort to make a political point rather than by an objective need for criminal punishment, public confidence in the rule of law is jeopardized

Attorney General Jeff Sessions recently said that “the Department of Justice does not represent any narrow interest or any subset of the American people. We represent all of the American people and protect the integrity of our Constitution. That is our charge.”

Those words convey a fundamental precept. The Department of Justice does not choose sides because of the identity of a party. We do not enforce the law against some people, and ignore others, based on bias or any other inappropriate consideration.

Prosecutors are required to follow neutral principles, and engage in impartial decision-making. That process sometimes leads to unpopular results.

Prosecutors do not need to explain the reasons for unpopular decisions. In many cases, it would be wrong to publicize detailed reasons. But we must have reasons.

There should always be a good answer to the question, “Why did you prosecute that case?” It will not do for the prosecutor to respond, “Because I must,” or “Because I can.”

“Must” is overbroad. It implies the absence of discretion. “Can” is shortsighted. It betrays a lack of wisdom.

The only right answer is, “Because I should.” “Should” involves accepting responsibility for a moral decision.

In conclusion, I turn again to Robert Jackson, who opined that a good prosecutor should play fair, temper zeal with kindness, seek the truth, serve the law and approach the task with humility.

Humility is an essential attribute for guardians of the rule of law.

The fairness of the system relies on the good judgment of prosecutors.

Prosecutors who exercise their discretion wisely remain faithful to the rule of law, and fulfill their duty to keep the republic.