Federal prosecutors decide who is investigated, who is charged, and with what. That power has traditionally been exercised at a distance from the White House, on the premise that criminal cases should turn on facts and law, not on who the defendant's friends or enemies are. But prosecutors work in the executive branch, and the Attorney General serves at the President's pleasure. Where does legitimate policy direction end and improper political interference begin?
In this TalksOnLaw interview, Joel Cohen sits down with Professor Bruce Green of Fordham Law School and Professor Rebecca Roiphe of New York Law School, both former prosecutors and leading scholars of prosecutorial ethics who have written extensively together on prosecutorial independence, to examine the relationship between the President, the Attorney General, and the career prosecutors of the Department of Justice. The conversation was recorded in January 2021, at the end of President Trump’s first term; references to the President’s election-fraud claims are to the period after the November 2020 election.
Can the President Direct Prosecutors?
Most people, especially after Watergate, have understood that the President should not direct federal prosecutors in individual cases, Green explains, and that the Attorney General's job includes preserving that independence. Some officials and scholars disagree. They argue that prosecution is an executive function the President may control, with the remedy for abuse being political. Green finds that view troubling. By the time voters can remove a President who abuses prosecutorial power, he notes, people may have unjustly lost their liberty. A directive such as "only go after registered Democrats for tax crimes" would be an improper exercise of discretion, and a prosecutor who received it would face a hard choice between refusing and risking dismissal, or resigning.
Policy Versus Individual Cases
The professors draw a line between policy and individual cases. A President may set criminal justice priorities, for instance by shifting resources toward drug, terrorism, or white-collar cases, and voters can hold the President accountable for those choices. What a President may not do is dictate outcomes in particular matters. Roiphe explains that prosecutors may weigh many factors in exercising discretion, but a person's powerful connections is not one of them. Telling a prosecutor to go easy on a friend is corruption of the process, and directing prosecutors to pursue political opponents is worse. The hard cases come when policy and partisanship blur, such as an announced focus on election fraud in particular communities. There, the Attorney General and prosecutors must separate legitimate priorities from transparently political ones.
The Attorney General's Two Hats
The Attorney General is both a member of the President's cabinet and the nation's chief law enforcement officer. Those roles are in tension, Roiphe says, and the Attorney General is also responsible for policing the line between them so that improper political considerations do not reach line prosecutors. The President can fire the Attorney General, but a successor must be confirmed by the Senate, which creates a check. The professors recall the Saturday Night Massacre, when President Nixon's effort to remove the Watergate special prosecutor led to the departure of the Attorney General and his deputy. The prosecutor was fired, but his successor carried the investigation forward, and the episode fueled lasting concern about politicizing the Department.
Norms Under Strain
The professors walk through episodes they view as departures from long-standing norms. President Trump reportedly told FBI Director James Comey that Michael Flynn was a good guy and asked him to let the matter go. Attorney General William Barr argued that decisions should be controlled from the top rather than by the Department's "lowliest" members, a view Green calls incoherent. Barr also publicly announced election fraud investigations around the 2020 election, even though the Department ordinarily avoids public steps that could influence an election and generally does not announce investigations at all, both to protect grand jury secrecy and to avoid tarnishing people who have not been charged.
Roger Stone and Michael Flynn
In Roger Stone's case, line prosecutors recommended a sentence within the federal guidelines. After the President criticized the recommendation on Twitter, Department leadership overrode it. The Attorney General had the authority, the professors agree, but using it this way was unprecedented, and it looked like favoritism toward the President's associate. The trial prosecutors withdrew from the case in protest, and one resigned from the Department. In Flynn's case, the Department moved to dismiss the charges after Flynn had pleaded guilty and while he awaited sentencing, on the theory that he should not have been prosecuted. Green explains that such motions are unusual but not unheard of. The Department moved to set aside Senator Ted Stevens's conviction after prosecutors were found to have withheld exculpatory evidence. Dismissal also requires leave of court. Judge Emmet Sullivan appointed a former federal judge to argue against the motion, the D.C. Circuit allowed him to consider it, and the President's pardon ended the case.
The Mueller Report
Special counsels exist to add a layer of independence when an investigation reaches senior executive officials. Robert Mueller declined to decide whether the President committed obstruction of justice, citing the Department's position that a sitting President cannot be indicted and leaving the matter to Congress. Before the report was released, Attorney General Barr issued a summary that, in Roiphe's view, presented it as much more of an exoneration than it was, and he concluded that the evidence did not establish obstruction. A group of prominent lawyers later filed a disciplinary complaint with the D.C. Bar alleging that Barr had been dishonest and had served the President's personal interests rather than the public. Government lawyers may present facts in the light most favorable to their side, Green says, but the chief government lawyer must not cross from spin into misrepresentation.
What to Know Now
The questions in this conversation moved from theory to practice after 2020. In Trump v. United States (2024), the Supreme Court held that the President's authority over the Justice Department's investigative and prosecutorial functions is "conclusive and preclusive" and that his discussions with the Attorney General about potential prosecutions are absolutely immune from criminal prosecution. That decision strengthened the view that the President may lawfully direct the Department, and in 2026 the Court's decision in Trump v. Slaughter, overruling Humphrey's Executor, further expanded presidential control over the executive branch. In the second Trump administration, the Department created a "Weaponization Working Group," dismissed or reassigned prosecutors who had worked on investigations of the President, and moved to dismiss the corruption case against New York City Mayor Eric Adams, prompting the resignations of the acting U.S. Attorney in Manhattan and several senior prosecutors. The court dismissed the Adams case with prejudice. After the President publicly urged the Attorney General to act against his critics, prosecutors in Virginia indicted former FBI Director James Comey and New York Attorney General Letitia James. A federal judge dismissed both indictments in November 2025 because the interim U.S. Attorney who obtained them had been unlawfully appointed, and the government's appeal was argued in the Fourth Circuit in September 2026. The Third Circuit likewise held that the acting U.S. Attorney for New Jersey had been serving unlawfully. The point Green and Roiphe make about the Senate's role when an Attorney General is replaced was tested in 2026: the President removed Attorney General Pam Bondi in April, and her successor, Todd Blanche, was confirmed by a 50–49 vote in August.
Supporters of these actions argue that the President was elected to run the executive branch, that the Department had itself been politicized against him, and that accountability should come through elections. Critics, including many former Justice Department officials of both parties, argue that directing prosecutions of named opponents is exactly the abuse the post-Watergate norms were designed to prevent, and that the resignations and court rulings reflect how far those norms have eroded. With formal legal limits on presidential control narrowing, the internal norms, professional duties, and individual choices Green and Roiphe describe, including prosecutors' ethical obligations, judges' review of dismissals and appointments, and the willingness of lawyers to resign rather than comply, have become the main safeguards.
