Principal-Agent Theory, Career Prospects, and U.S. Attorneys

This chapter explores two theories central to understanding the behavior of federal prosecutors. First, principal-agent theory is introduced to frame the relationship between national political actors, or principals, in the executive and legislative branches and their agents—U.S. Attorneys (USAs). In that exploration, the chapter focuses on problems of adverse selection and the monitoring of agents by principals. Second, the chapter considers career ambition theory as it pertains to the post-service employment opportunities of USAs. That discussion focuses on the potential of USAs to ascend to higher positions in the administration or secure nomination to the federal bench, both of which require the approval of principals in the executive branch.

Political Responsiveness and Sentence Length

This chapter offers an analysis of variations in sentence length across the study’s issue areas of interest. That assessment incorporates the changes in sentencing law wrought by United States v. Booker, which many suggest increased the influence of local actors and U.S. Attorneys (USAs) themselves at the potential expense of national principals. In addition, the chapter contains a thorough discussion of the role of mandatory minimums in structuring sentence length in narcotics and weapons prosecutions. It also considers how USAs might cabin the discretion of their subordinates. Model results confirm that the discretion of USAs increased after Booker, but that executive branch influence was also strengthened.

Describing the Data and Issue Areas

This chapter thoroughly describes the data we use to test our hypotheses. Included in that description is a discussion of the five issue areas we study: immigration, narcotics, terrorism, weapons, and white-collar. The chapter considers the salience and complexity of these substantive areas and characterizes partisan preferences in each as they relate to case filings and sentence length. It also explores how trends in both filings and sentencing have changed over time and provides descriptive evidence about changes in the centralization of priorities across issue areas within the DOJ. Additionally, the chapter contains an overview of the post-service careers of U.S. Attorneys (USAs).

Three Case Studies in Political Control

This chapter explores three periods in the development of the relationship between U.S. Attorneys (USAs) and the Department of Justice. The first case study considers the executive branch’s use of USAs in attempts to rein in racial violence during Reconstruction. The second case study centers on the savings and loan crisis of the late 1980s and highlights the efforts of national principals to focus federal prosecutors on politically salient crimes. The final case study examines the USA firing scandal of 2006, an ultimately failed attempt by the George W. Bush administration to control USAs. Throughout, we emphasize the ways in which centralized control of the USAs has evolved over time.

Political Responsiveness and Career Prospects

This chapter considers the relationship between performance as a U.S. Attorney (USA) and subsequent career prospects. Results indicate that adherence to presumed partisan preferences relates to the likelihood of both promotion within the executive branch and nomination to the federal bench. USA performance is less likely to matter for positions such as entering private practice, over which national principals have little control. These results underscore an alternative mechanism under which shirking by federal prosecutors may be punished. Additionally, we find that ideological distance from the President is a potent predictor of the probability of nomination to the federal courts but has no association with elevation within the executive branch.

Political Responsiveness and Case Filings

This chapter investigates whether partisan control of the presidency and Congress is associated with how U.S. Attorneys (USAs) allocate their resources in filing cases across the issue areas we study. Empirical evidence is presented which suggests that partisan control of the presidency is a particularly potent predictor of prosecutorial discretion at the filing stage in four of the five issue areas we study. Findings from the investigation also indicate that divided government mitigates the association between partisan control of the White House and changes in case filings. In addition, the empirical models show that presidential and congressional attention to an issue area also conditions the extent to which federal prosecutors prioritize that issue.

Concluding Thoughts and Implications

This chapter revisits key findings presented throughout the book. The results indicate a clear pattern of executive influence on the work of U.S. Attorneys (USAs). Additional results suggest that Congress has more influence than previously considered. The models in Chapter 6 show that Booker increased the influence of the President as well as the discretion of federal prosecutors. This naturally leads to questions about how future administrations will attempt to influence USAs and, more directly, how the Trump administration’s focus on narcotics and immigration will alter the priorities of USAs. Beyond this short-term speculation, the final chapter grounds the results in the rich empirical literature on the control of agents, prosecutorial discretion, and the imperial presidency.

Introduction

This introductory chapter provides background on the working environment of U.S. Attorneys (USAs), including the formation of the Department of Justice and the recent expansion of federal criminal law. Chapter 1 briefly introduces Assistant U.S. Attorneys (AUSAs) and the concept of prosecutorial discretion. We explore the expansion of the U.S. criminal code and growth in the number of AUSAs employed in USA’s offices, focusing on how the increasing scope of the criminal code has made control of U.S. Attorneys potentially valuable and how civil service protections may have made AUSAs more difficult to control. Lastly, we discuss the potential future careers of USAs and how these careers relate to the possibility of political control.