WASHINGTON, D.C. — A new proposal published in The Washington Post by Ian Ayres, a professor at Yale Law School and co-author of Retirement Guardrails, and Saikrishna Prakash, a professor at the University of Virginia School of Law and author of The Presidential Pardon: The Short Clause With a Long, Troubled History, argues that the United States needs an unprecedented “prosecutor jury” system to evaluate indictments against politicians as concerns grow that prosecutions are increasingly fueled by partisan motives.
In the opinion piece, the authors open by noting the recent federal case involving former FBI Director James B. Comey, writing, “Before the case was dismissed this week over a separate issue, lawyers for James B. Comey argued in federal court that the former FBI director’s indictment was improperly motivated by political animus.” They assert that the Comey dispute reflects a broader belief that “high-profile Justice Department cases” are now viewed as driven by “partisanship or revenge.”
The article emphasizes that prosecuting politicians and elected officials is widely perceived by the public as weaponized. Recent indictments of New York Attorney General Letitia James and Democratic Rep. Monica McIver of New Jersey, the authors note, have intensified that belief.
In response to what they describe as growing weaponization, they argue that “we are caught in a vicious cycle. The in-group is using the law against the out-group, which will surely feel empowered to respond in kind once the tables turn again.” They point to the four indictments against former President Donald Trump in 2023, which he characterized as “illegitimate ‘lawfare’ meant to thwart his return to office.”
The writers contend that the Justice Department faces a difficult dilemma. “In deciding whether to prosecute politicians, the Justice Department must navigate two vital imperatives: Politicians should not be immune from prosecution, and the decision to prosecute should not be influenced by partisan politics,” they state.
They argue the department no longer has the “internal safeguards” it once relied on to prevent politically motivated prosecutions. They report that the safeguards eroded in May when the Trump administration suspended “a decades-old requirement that prosecutors seek approval from its Public Integrity Section before charging members of Congress.”
While defendants can challenge indictments they believe are politically motivated, the article notes that “courts rarely dismiss indictments on grounds of selective or vindictive prosecution.” As an alternative, the authors propose authorizing federal judges to “impanel a ‘prosecutor jury’ to assess the propriety of the indictment” when political bias is suspected.
Under their proposal, two-thirds of the “prosecutor jury” would need to agree that the indictment is appropriate. The panel would consist of “20 randomly selected former U.S. attorneys, evenly divided between those nominated by Democratic and Republican presidents.”
The opinion piece asserts these former U.S. attorneys are especially qualified to make such determinations. “Unlike ordinary grand jurors, they have extensive experience making charging decisions, understand prosecutorial strategy and can distinguish legally sound theories from problematic ones,” the authors write.
Responding to anticipated criticism, the article argues that such a process aligns with constitutional protections. “The Bill of Rights mandates numerous protections that make conviction more difficult, from unanimous jury verdicts to rules about gathering evidence. Moreover, the Constitution grants special protections for certain officials,” they state.
They also argue that the proposed reform would “help ensure that politicians are not above the law since they would remain subject to prosecution.” They report that a survey of “former U.S. attorneys” produced encouraging results when testing the proposal.
The piece concludes with the authors’ bipartisan warning: “We, too, are members of opposing parties, and we both fear that the weaponization of prosecutions gravely threatens the rule of law.”
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