Servant of the Law: The President as Chief Prosecutor

“The United States Attorney . . . . is in a peculiar and very definite sense the servant of the law . . . .”

Berger v. United States, 295 U.S. 78, 88 (1935)

“Be ye ever so high, the law is higher than ye.”

— Lord Denning

President Donald Trump is now operating as the chief prosecutor of the United States: he has the exclusive authority to decide who is investigated or prosecuted by the Department of Justice. This is what Trump himself has repeatedly suggested;^[1] it is what his Department of Justice has confirmed;^[2] and it is what the Supreme Court has held the Constitution establishes.^[3] Here, we examine the constitutional, legal, and ethical constraints on the president when he exercises his power as chief prosecutor by choosing a particular person to be investigated or prosecuted.

At the outset, it should be noted that in other liberal democracies, it would be — and has been — considered a violation of the rule of law for political leaders to dictate who is, or is not, to be criminally investigated or prosecuted.^[4] It was likewise seen as contrary to the rule of law when President Richard Nixon pursued those on his enemies list. “I can only conclude from Mr. Nixon’s actions that he considers himself above the law,” Senator Floyd Haskell stated at the time.

But the firewalls erected post-Watergate to insulate the Department of Justice from the White House have now been breached. Furthermore, some suggest that no such walls could constitutionally be erected.^[5] Channeling this view, the Trump administration has taken the position not only that any “norms” regarding the independence of the Department of Justice are no longer operative, but that — in the words of Todd Blanche, Trump’s attorney general and former personal lawyer — the American people should be “happy” that Trump is directly involved in the Department of Justice’s decisions, since it shows he is fulfilling his constitutional duty.

One’s happiness in this regard may be tempered, however, by considering the Department of Justice’s own Manual, which succinctly explains why such involvement by the president is contrary to the rule of law:

The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration. It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department’s legal endeavors.

Likewise, the Group of States Against Corruption (GRECO) — an international organization of which the United States is a member — has “insisted on the need to ensure the autonomy of the prosecution service” and “warned against reporting to political authorities regarding the investigation of individual cases.” This applies “whether prosecutors are functionally independent or hierarchically subordinated to the executive.”

In short, if the Constitution requires the president to be the chief prosecutor, that requirement conflicts with fundamental precepts of the rule of law.^[6] It is not our purpose, however, simply to reemphasize that point, or to repeat the arguments against this constitutional interpretation.^[7] Instead, we assume that, as the Supreme Court has held, the president is the chief prosecutor under the Constitution and consider the implications of that holding.

We begin by showing that Trump has enthusiastically embraced this role. We then ask — given this embrace — what are the consequences for criminal prosecutions, particularly those in which the president has direct involvement? In other words, when the president acts as chief prosecutor — when he decides or directs who is to be criminally investigated or prosecuted — what are his responsibilities? And when he deviates from those responsibilities, when should it void the prosecution or give the prosecuted another remedy?

We conclude that because the president is the chief prosecutor, he has the same legal obligations and limitations as does any other federal prosecutor — just as the attorney general and U.S. Attorneys do when they become involved in a case. This means, in the first place, that the president is subject to the same constitutional constraints as any other prosecutor; in particular, he violates the Constitution if he suggests, pursues, or authorizes a vindictive, selective, retaliatory, or otherwise abusive prosecution.^[8] Second, since the president has “exclusive authority” over criminal investigations and prosecutions, any judicial consideration of a claim of abusive prosecution must begin with the president’s own statements and actions, since subordinate prosecutors cannot act contrary to his will; moreover, at least where the president has involved himself in a particular case, he is necessarily part of the “prosecution team” for purposes of the preservation and discovery of evidence — and in any case in which he or others at the White House have received grand jury information, they must be identified to the court pursuant to Federal Rule of Criminal Procedure 6(e)(3)(B). Finally, by acting as chief prosecutor, the president submits himself to the jurisdiction and rules of the relevant court, including with respect to limitations on public statements regarding a pending case. In short, if the president has the powers of a prosecutor, he also has the responsibilities of one.

And when the president deviates from those responsibilities, his actions are not immune from correction. Although Trump has stated that “I have an Article II, where I have the right to do whatever I want as president,”^[9] that is, of course, manifestly untrue. Under Article II, the president is constitutionally required to “take Care that the Laws be faithfully executed,” and by his oath has sworn to “preserve, protect and defend the Constitution of the United States.” The unitary executive theory may unify the Executive but it does not mean the president is unconstrained by the Constitution.^[10] Indeed, as Justice Antonin Scalia explained, the possibility that an Executive may abuse his “exclusive power” to prosecute is checked by the Judiciary’s “exclusive power” to “dismiss malicious prosecutions.”

In sum, just as any other federal prosecutor, the president is a “servant of the law,” and cannot abuse his prosecutorial power or use it as “an instrument of oppression.” Should he do so, as is shown below, courts have the constitutional power and duty to respond, including by holding the president to account as the leader of the prosecution team, quashing subpoenas issued for the purpose of harassment, and — in Justice Scalia’s words — “dismiss[ing] malicious prosecutions.”

I. President Trump Is Acting as Chief Prosecutor of the United States.

In word, policy, and deed, Trump has embraced the role of chief prosecutor of the United States. We start with his public statements. In his first term, Trump asserted “I have [the] absolute right to do what I want to do with the Justice Department.” He also repeatedly called himself the “chief law enforcement officer of the country,” a claim reiterated during his second term.^[11] In addition, during the 2024 campaign, then-candidate Trump stated that if he were re-elected, “based on what [his political opponents have] done, I would have every right to go after them.”

Turning to official policy: following Watergate, successive presidents typically have sought to avoid both appearing to become, and actually becoming, involved in particular criminal cases. To that end, they erected a wall of separation between the White House and the Department of Justice, in particular by establishing a written “contacts policy” limiting who in DOJ can speak with the White House and strictly limiting discussion of particular cases, as opposed to general criminal justice policy issues. During the first Trump administration, commentators raised concerns over apparent violations of the contacts policy by administration officials. And although White House Counsel Don McGahn issued a 2017 memorandum regarding contacts, he addressed it only to White House staff, and its rules did not seem to apply to the president — who, in fact, frequently attempted to intervene in law-enforcement affairs. In the second Trump administration, the White House reportedly circulated internally a memorandum explicitly allowing discussions with the president and vice president about criminal and civil litigation matters.

Finally, as to deeds: Trump has asserted complete authority over the Department of Justice, and has ordered particular investigations and prosecutions. Trump is now literally –– as well as figuratively — the face of the Department of Justice. In one of her first acts, then-Attorney General Pam Bondi issued a memorandum making clear that the Department’s client was the president and that DOJ attorneys were not to exercise independent judgment — a dramatic break from the Department’s prior position.^[12] DOJ followed through on that threat almost immediately, placing three prosecutors on administrative leave following their resistance to a plea deal for then-New York City Mayor Eric Adams. Others have similarly been relieved of their positions or resigned.

The Department also has made clear it is taking its orders directly from the president. For instance, Trump posted on Truth Social last November that he was “asking” Bondi to investigate Democrats related to their alleged involvement with convicted sex offender Jeffrey Epstein. When the president was asked whether it was appropriate to order such investigations, he responded, “I’m the chief law enforcement officer of the country. I’m allowed to do it.” Bondi answered the president’s direction with alacrity, in a post that said “Thank you, Mr. President,” and explained that she had assigned the investigation to U.S. Attorney for the Southern District of New York, Jay Clayton. When Bondi herself was ultimately terminated, apparently for failing to implement the president’s prosecutorial agenda to his satisfaction, Trump nominated Blanche, then-deputy attorney general, to replace her. Blanche, in turn, explicitly refused to pledge that he would act independently from the White House.^[13]

The White House has gone further still, in essence cutting out the Department of Justice entirely as an unnecessary middleman. Earlier this year, Vice President JD Vance announced that the DOJ’s new “Fraud Division” would report to the president and to him. The president has met directly at the White House with U.S. Attorneys from across the country, reportedly “excoriat[ing]” them for failing to pursue cases he cared about more quickly.^[14] And FBI Director Kash Patel apparently was summoned to the White House to plan an investigation into reporting by the New York Times; Patel himself confirmed, “I was at the White House, true, and the fake news will find out why soon.”

But perhaps most telling is the president’s Truth Social post regarding former FBI Director James Comey, New York State Attorney General Letitia James, and U.S. Senator Adam Schiff (D-CA), which bears quoting in full:

Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia [sic]??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT

Some reports suggest the president meant to send this as a private Direct Message to Bondi, but instead mistakenly posted it publicly. Strikingly, Bondi reportedly was upset not that the president had publicly called for these prosecutions, but that the president’s post suggested she was not acting quickly enough to meet his demands; the president accordingly posted shortly thereafter that she was doing a “GREAT job.” But the message got through: within three weeks, the Department of Justice had indicted both James and Comey, two out of three of the president’s targets, and reportedly was also investigating Schiff.

While the court dismissed on other grounds in the Comey and James cases,^[15] the government’s responses to the defendants’ motions to dismiss on the grounds of vindictive and selective prosecution are telling. Notwithstanding Trump’s Truth Social post, the government argued the defendants failed to establish that the president directed that the prosecutions take place, even while suggesting it would “‘have been surprising’” had the “highest-level officials” not been involved in such a significant case.^[16] Similarly, referring to the president’s Truth Social post, now-Acting Attorney General Blanche explained “[t]hat type of communication from President Trump should make every American happy,” since “[i]t means that there’s an executive, a chief executive, that is making sure every one of his Cabinet members are working as hard as they should.”

Indeed, the Supreme Court suggested in Trump v. United States that this is exactly as it should be under the U.S. Constitution. The Court there held that “[t]he President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’—such as the Attorney General—‘in their most important duties.’” And this is true even if the removal is because the subordinates refuse to go along with an abusive prosecution: “[t]he indictment’s allegations that the requested investigations were ‘sham[s]’ or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” So here: the president decided that “[t]here is a GREAT CASE” against Comey and James; he forced the removal of the interim U.S. Attorney who said “we have no case”; and then he put in place a replacement who would prosecute the case “NOW.”

With this Supreme Court imprimatur for his actions, why should Trump hesitate to take full credit for having directly ordered these investigations and prosecutions? Perhaps the government’s half-hearted attempt to suggest that Trump could have, but did not, interfere in these investigations and prosecutions can be interpreted — as has been said of hypocrisy — as the homage that vice pays to virtue. Trump himself has repeatedly used the same technique: suggesting he could have ordered a particular investigation or prosecution but did not do so — notwithstanding all the evidence to the contrary.^[17] This attempt at deflection suggests even the Trump administration recognizes that there is something troubling about the president being seen as personally choosing whom he will have investigated or prosecuted: perhaps not troubling to members of the administration in a moral sense, but in the sense that acknowledging the president’s role as chief prosecutor may trigger consequences they would prefer to avoid. What those consequences are, we discuss in the sections that follow.

II. As Chief Prosecutor, the President May Not Pursue Abusive Prosecutions.

More than 90 years ago, the Supreme Court held that federal prosecutors operate not as “an ordinary party to a controversy,” but instead as a “representative” of “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” The “interest therefore” of the U.S. government “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” The Court stated that the federal prosecutor is thus “in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”

The Constitution’s Due Process Clause compels this conclusion. As the Supreme Court has repeatedly held, the Due Process Clause prevents government officials “‘from abusing [their] power, or employing it as an instrument of oppression.’” In particular, it forbids retaliatory or vindictive prosecutions based on an individual’s exercise of his rights: “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’” Likewise, “while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”

Moreover, abusive prosecutions may violate not just the Due Process Clause, but other provisions of the Constitution as well. Thus, “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” And the Equal Protection Clause prohibits the government from selectively deciding “whether to prosecute . . . based on ‘a standard such as race, religion, or other arbitrary classification’” or from “intentionally treat[ing]” the defendant “differently from others similarly situated” where “there is no rational basis for the difference in treatment.”

But the Due Process Clause protects not just against selective federal prosecutions or prosecutions brought to punish an individual for exercising his or her rights. More generally, it forbids any prosecution brought “as an instrument of oppression,” including a prosecution brought for the purpose of gratifying the animus — or whim — of the prosecutor. As the Supreme Court has held, it is “a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion.”^[18]

Several federal district courts have found that the second Trump administration has in fact abused its prosecutorial power by unlawfully undertaking criminal investigations or prosecutions to harass, punish, or pressure the administration’s opponents. In In re Grand Jury Subpoenas Nos.__ & __, Chief Judge James Boasberg of the United States District Court for the District of Columbia quashed two subpoenas issued to the Federal Reserve, holding that “[i]n light of all the evidence” –– which included social media statements by Trump attacking Federal Reserve Chair Jerome Powell — “the only reasonable inference is that the Government targeted Powell ‘out of malice or an intent to harass’ and has launched a ‘fishing expedition[]’ to either find something to pin on him or to pressure him to fold” because of his management of the Federal Reserve.^[19] In In re Grand Jury Subpoenas, Chief Judge Patrick Schiltz of the United States District Court for the District of Minnesota quashed subpoenas issued to the offices of Minnesota state and local officials, finding –– based on “overwhelming” evidence that included Trump’s social media statements –– that the subpoenas were part of a criminal investigation undertaken to “harass political opponents or to coerce them into taking official action,” which is a “blatantly unlawful and unethical use [of] the grand-jury process.”^[20] And in United States v. Abrego Garcia, Judge Waverly Crenshaw of the United States District Court for the Middle District of Tennessee dismissed a criminal prosecution, finding the government failed to rebut the presumption that the prosecution was vindictively brought to punish the defendant for asserting his rights; specifically, the court found “persuasive, credible, objective evidence” contrary to the government’s claim that the prosecutor decided to indict “free of influence, pressure, or direction from [then-Deputy Attorney General] Blanche, Main Justice, the White House, or DHS.” The government has appealed this holding.

In sum, even if under Trump v. United States the president can punish subordinates for not pursuing prosecutions for abusive purposes, that does not mean he can pursue such prosecutions without violating the Constitution.

III. In Considering Abusive Prosecution Claims, Courts Should Treat the President’s Actions and Statements as Those of the Chief Prosecutor of the Case.

Whether in any particular case the president has directed that a prosecution proceed for an abusive purpose is a question of fact for a court to decide. But given the Supreme Court’s ruling in Trump v. United States that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials” –– and the ample evidence noted above that Trump has avidly embraced and exercised that authority — a court reviewing a defendant’s abusive prosecution claim must begin its analysis by considering any public accusations against the defendant by the president and must treat such statements as providing direct evidence — or at a minimum, as creating a rebuttable presumption — that the president himself made the decision to prosecute.^[21]

In abusive prosecution cases, courts frequently consider whether the prosecutor reached an independent decision to prosecute.^[22] But presidential involvement makes that analysis inapposite, since under the unitary executive theory, once the president has determined a prosecution should be pursued, a prosecutor may not independently decide not to go forward. As the Supreme Court explained last term in Trump v. Slaughter:

To vest “the whole executive power” in just one person was not to suggest that he could execute the laws alone and unaided. The Federalist No. 47, at 303 (J. Madison). But it was to establish a hierarchy—a “Chief Magistrate” with whom the buck stops, and below him various “assistants or deputies” who “derive their offices from his appointment” and remain “subject to his superintendence.”

Thus, the Court explained, the president’s “so-called assistants” cannot “exercise his power against his wishes,” since this would not allow “the Constitution [to] live up to James Iredell’s boast that ‘the President’ would be ‘personally responsible for everything.’” This applies with particular force in the context of litigation since “the ‘discretionary power to seek judicial relief’ lies at the very core of executive authority,” and thus it is “up to the Executive to ‘decide how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’”

In other words, if the president directs a prosecution to proceed, it is irrelevant whether the line prosecutor who appears in court claims to have subsequently made an independent assessment of the case’s validity. Under the unitary executive theory adopted in Trump v. United States — and as reinforced by the Bondi memorandum requiring DOJ prosecutors to pursue cases regardless of their personal judgment — a federal prosecutor has no independent authority to assess whether a case is proper. As a result, if the president’s decision to prosecute was based on unlawful considerations, it cannot be “cured” by the actions or statements of subordinate prosecutors, since they serve only to effectuate his will.

To be sure, federal law makes the “Department of Justice, under the direction of the Attorney General,” responsible for federal litigation^[23] and further gives U.S. Attorneys the duty to prosecute federal crimes within their districts. Likewise, the Federal Rules of Criminal Procedure define who is an “attorney for the government” for the purposes of “criminal proceedings” in the federal courts.^[24] But although the president may not be the “attorney for the government” who appears in court, the Supreme Court has held that his power “to decide which crimes to investigate and prosecute” is “exclusive . . . and absolute” and that he “may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed’” (emphasis added).^[25] Indeed, Professor Prakash argues that “[t]aken together, the Executive Power and Faithful Execution Clauses suggest that the president may direct official prosecutors and, in some cases, has a duty to do so. . . . The president’s faithful execution duty may require him to use his executive power to direct the official prosecutors.”^[26]

Thus, when evidence suggests the president has involved himself in a particular case, a court considering an abusive prosecution claim must treat the president’s statements and actions as those of the chief prosecutor in that case. This means, in the first instance, that the court must consider whether the president’s statements or actions in and of themselves constitute sufficient proof of impermissible purposes.^[27] Alternatively, the court must consider whether those statements or actions demonstrate “a realistic likelihood of vindictiveness” or other forbidden abusive purpose, which the government then must rebut.^[28]

Evidence that the president has chosen to intervene in a particular prosecution is not necessarily limited to his own public statements or actions. Such involvement also may be signaled by his subordinates’ words or deeds or by structural changes the administration has made to bring prosecutions directly under White House control.^[29] Furthermore, such involvement may be evinced by the sharing of grand jury information with the White House. Under Federal Rule of Criminal Procedure 6(e), a matter occurring before a grand jury may be shared with “any government personnel . . . that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law.” Thus, when acting as chief prosecutor, the president may receive such information. But anyone to whom such information has been disclosed “may use that information only to assist an attorney for the government in performing that attorney’s duty to enforce federal criminal law.” Further, “[a]n attorney for the government must promptly provide the court that impaneled the grand jury with the names of persons to whom a disclosure has been made” and must certify that the recipients have been advised of their obligation to preserve the secrecy of this information. In sum, if any grand jury information has been shared with the president or any other White House personnel, the Department of Justice must inform the court.^[30] Such disclosure necessarily establishes the president’s involvement as prosecutor in a particular case — since sharing such evidence without a reason that would “assist an attorney for the government in performing that attorney’s duty to enforce federal criminal law” –– or to protect national security –– would violate grand jury secrecy.^[31]

Once the president’s involvement in a particular investigation or prosecution is established, other obligations follow, including with respect to the preservation and discovery of evidence. As the DOJ Manual explains, “the prosecution team” for purposes of discovery includes “federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case” (emphasis added). Where the president is involved in a particular case, he is by definition the head of the “prosecution team.” The line prosecutor accordingly has the “obligation[,] . . . in preparing for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team,” including the president or any other White House officials who participated in the investigation or prosecution.

In addition, the Justice Manual provides that “[a]ll prosecution team members should be aware of the government’s obligations regarding the preservation and disclosure of electronic communications,” including that “case-related e-communications may potentially be disclosed to the defense.” Thus, the Manual continues, “all team members should understand . . . the obligation to preserve and produce such communications when appropriate.” The Justice Manual further provides that “[p]rosecution team members should not use personally owned electronic communication devices, personal email accounts, social networking sites, or similar accounts to transmit case-related information to witnesses or other team members.” It also makes clear that this “guidance applies at all phases of a criminal case including investigation, trial preparation, trial, and post-trial” (emphasis added). As one commentator has noted, if, for instance, Trump is considered part of the prosecution team for the Comey prosecution, “[a]t a minimum,” DOJ may need to take steps to preserve his electronic communications, including from personal devices.^[32]

Following this reasoning, the United States District Court for the Southern District of Texas recently concluded that discovery in a criminal case could extend to possible communications by Trump, given his control over the Department of Justice. In United States v. Yuan, the defendant — charged with conspiring to export-controlled computer chips to China — sought discovery under Federal Rule of Criminal Procedure 16 and Brady of published or unpublished statements by Trump relating to the enforcement of the statutes involved in his case, including any relevant communications with the president of China. The court directed discovery, holding:

The Presidency and the Department of Justice . . . constitute one branch of government . . . . The President is not exempt from the law (FRCP, Rule 16), even though it may be argued that he cannot be prosecuted for violations.

In its Motion to Reconsider, the Department of Justice — including its National Security Division — argued the information sought was shielded by various privileges, and that in any event the president could not be considered part of the prosecution team in that particular case, because he had not been involved in it. The Department stated that while “[t]he President is the head of the executive branch of which the Department of Justice is part,” he was not part of the “investigative and prosecutorial personnel” that brought the case: “[t]he President was not involved in the investigation or prosecution of the Defendant and is therefore not a part of the prosecution team” (emphasis added). This necessarily concedes that the president would be part of the prosecution team where he was involved in an investigation or prosecution.^[33]

IV. When Acting as Chief Prosecutor, the President Submits Himself to the Jurisdiction of the Court.

When federal prosecutors bring a case, they submit themselves to the jurisdiction of the court hearing the case. The prosecutor accordingly becomes subject both to the general Federal Rules of Criminal Procedure and the local rules of that court. The same principles must apply also when the president acts as chief prosecutor in a particular case: as leader of the prosecution team, the president must be subject to the court’s jurisdiction and rules to the same extent as the rest of the team.

This does not present a separation of powers issue. After all, as noted above, under Trump v. United States, and in accord with the unitary executive theory, the line prosecutor who appears in court simply stands in for the president as his “assistant.” The trial prosecutor thus has no independent will or power; both derive entirely from the president. The same applies even to the U.S. Attorney and the attorney general — they too derive all their authority from the president. Yet no one would assert that the unitary executive theory implies a court could not assert jurisdiction over the line prosecutor in a particular case, or — as appropriate — over those in the prosecutor’s chain of command in the Department of Justice. It follows that no separation of powers issue arises from the extension of jurisdiction to the president when he acts as chief prosecutor in a particular case.^[34] To conclude otherwise would suggest that the unitary executive theory goes far beyond unifying the executive, instead destroying the separation of powers by giving the president and his subordinates prosecutorial powers the Judiciary cannot constrain.

Justice Scalia’s dissent in Morrison v. Olson addressed this point, noting that the unitary executive theory, while centralizing all executive power in the hands of the president, does not eliminate judicial checks on the exercise of this power. Scalia took the position that “the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law” — the very position the Supreme Court subsequently adopted in Trump v. United States. He then asked rhetorically: “Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue?” Scalia answered his own question by suggesting that “[a] system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.” But he went on to note that the check “against any branch’s abuse of its exclusive powers” is in the first instance “retaliation by one of the other branch’s use of its exclusive powers”: in particular, “the courts can dismiss malicious prosecutions” by the president.^[35]

Thus, once the president acts as chief prosecutor by directing that a prosecution take place, he cannot complain that he must answer to a court like any other prosecutor and obey that court’s rules. This includes, where local rules provide, restrictions on prejudicial pretrial statements. In United States v. Abrego Garcia, for instance, the District Court found that government officials — including Bondi and then-Department of Homeland Security Secretary Kristi Noem — publicly “made allegations regarding [defendant’s] ‘character or reputation,’” expressed views on his “‘guilt or innocence,’” and “offer[ed] an opinion ‘as to the evidence in the case’” — all prohibited by Local Criminal Rule 2.01(a)(2)(B).^[36] Accordingly, the court granted the defendant’s motion “to apply [the rule] to ‘order that all DOJ and DHS officials involved in this case, and all officials in this supervisory chain, including Attorney General Pamela Bondi and Secretary of Homeland Security Kristi Noem, refrain from making extrajudicial comments that pose a substantial likelihood of materially prejudic[ing] this proceeding.’”^[37]

Other federal courts have likewise extended restrictions on prejudicial statements to government officials beyond the line prosecutors conducting the trial. In United States v. Mangione, the United States District Court for the Southern District of New York found that “multiple employees at the Department of Justice may have violated Local Criminal Rule 23.1,” which bars statements by a lawyer or law firm — or non-lawyer personnel employed by the lawyer’s office or subject to a lawyer’s supervision — where there is a “substantial likelihood [those statements] will interfere with a fair trial or otherwise prejudice the administration of justice.”^[38] The court further instructed the government “to advise the Deputy Attorney General, for dissemination within the Department as appropriate, that future violations may result in sanctions, which could include personal financial penalties, contempt of court findings, or relief specific to the prosecution.”^[39]

Although a president might seek to distinguish Mangione on the grounds that the local rule at issue there applies only to lawyers and “non-lawyer personnel” employed or supervised by a lawyer, the broader point remains that courts may limit prejudicial speech by those associated with the prosecution team.^[40] Over two decades ago, the United States District Court for the Eastern District of Michigan made the same point in United States v. Koubriti when it “formally and publicly admonished” then-Attorney General John Ashcroft for comments that violated an earlier order prohibiting statements with a substantial likelihood of prejudicing the defendants in a terrorism trial.^[41] The court “fully recognize[d]” that “the Attorney General occupies two roles of equal importance, one as the Nation’s chief prosecutor, and one as the head of an Executive department with responsibilities to keep the public informed on policy matters.”^[42] It also recognized that “the Attorney General undoubtedly faces a difficult and challenging task in harmonizing these two roles,” yet it stated:

[I]t is unquestionably the duty of this Court to ensure that the defendants who appear before it are accorded their fair trial rights under the Constitution, to enter orders designed to protect these rights, and to see that its orders are obeyed.^[43]

The same reasoning perforce applies when the president chooses to displace the attorney general as “the Nation’s chief prosecutor” in a particular case: he, too must obey the orders of the court. Whether a court can enforce its orders against the president by means of contempt proceedings presents separation of powers issues beyond this article’s scope.^[44] But at least with respect to criminal contempt, the separation of powers issues do not arise because of the president’s involvement per se. Rather, there is an open question whether a district court may pursue a criminal contempt prosecution against any federal official without the participation of the Department of Justice. As a matter of logic, assuming district courts can pursue criminal contempt against prosecutors who disobey their orders, they should also be able to do so when the president acts as chief prosecutor. But here Trump v. United States may triumph over logic, affording the president immunity from criminal prosecution even when he has submitted himself to the jurisdiction of the court by acting as chief prosecutor in a particular case.^[45]

Regardless whether a court may hold a president in criminal contempt, other sanctions remain available: quashing criminal subpoenas or dismissing prosecutions clearly pursued, in the words of the Supreme Court, as an “instrument of oppression.” As noted above, several courts have done precisely this.^[46] Such judicial action, moreover, fully accords with the unitary executive theory, which assures us, after all, that the president cannot hide from the consequences of his actions, or divert responsibility for unlawful measures onto his assistants. To the contrary, as the Supreme Court recently stated, “[w]ith just one President in charge, [the Framers] reasoned, there would be no doubt ‘on whom the blame or the punishment of a pernicious measure . . . ought really to fall.” Nor is it just voters who can sit in judgment in this regard: federal courts can –– indeed must –– determine whether they are being asked to further prosecutions unconstitutionally advanced by the president. As the United States District Court for the Southern District of Florida recently explained, in connection with the purported settlement of Trump’s civil lawsuit against the IRS:

The President may be the functional “dominus litus” [sic] of the Executive Branch, but as a party to a civil suit, he, as well as all the parties and lawyers before a court, are bound by the rules. Ensuring that our courts are used only for the express purpose created by the Constitution is the obligation of every judge and an obligation that this Court must discharge in light of the matter before it.^[47]

This reasoning applies with equal, if not greater, force in the criminal context.

CONCLUSION

The Supreme Court has established the president as chief prosecutor of the United States, and Trump has embraced the role. But this does not confer power without constraint. Acting in this role, the president must continue to “take care that the Laws be Faithfully Executed” and must safeguard the rights of individuals to “due process of law” when their life, liberty, or property is subject to potential deprivation. The unitary executive theory may lead to the conclusion that the president is the chief prosecutor, but it cannot be read to grant him powers beyond those the Constitution grants to execute that function. To the contrary, when the president purports to act as chief prosecutor, he must abide by the same constitutional, legal, and ethical constraints that guide all federal prosecutors. In sum, when a president becomes a prosecutor — when he decides who will be investigated and prosecuted — he necessarily becomes “the servant of the law” and “the representative . . . of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.”

The authors are grateful for the advice of Professors of Law Kate Stith (Yale), Harold Hongju Koh (Yale) and Steven Arrigg Koh (Boston University).

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1. See discussion in Part I infra. ↑
2. See discussion in Part I infra. ↑
3. See Trump v. United States, 603 U.S. 593, 609, 620–21 (2024) (ruling that the President has “conclusive and preclusive” power “to decide which crimes to investigate and prosecute,” and has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials”); see also Saikrishna Bangalore Prakash, The Chief Prosecutor, 73 George Washington L. Rev., 521, 521 (2005), https://digital.sandiego.edu/lwps_public/art30 (noting academic debate over whether prosecution is an exclusively executive function, but arguing that “the Constitution’s original understanding, constitutional text, structure, and history establish that the President is the constitutional prosecutor of all federal offenses . . . .”). ↑
4. See also Rob Gillies, Canadian Ethics Commissioner Finds Justin Trudeau Violated Ethics, PBS News (Aug. 14, 2019), https://www.pbs.org/newshour/world/canadian-ethics-commissioner-finds-justin-trudeau-violated-ethics (describing Canadian Ethics Commissioner’s finding that then-Prime Minister Justin Trudeau’s attempts to influence former attorney general to halt prosecution of a company violated prosecutorial independence). ↑
5. See Prakash, supra note 3 at 539 (arguing that the President not only may act as chief prosecutor, but that “[t]he president’s faithful execution duty may require him to use his executive power to direct the official prosecutors”) (emphasis added). But see infra nn.6-7. ↑
6. See also Caleb Nelson, Against the Dictatorial Presidency 65-68 (Sep. 8, 2026) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7365761 (arguing that the unitary executive theory “has encouraged President Trump’s assertions of control over specific prosecutorial decisions at the Department of Justice” in a way that “violates norms” while “the Supreme Court is making it difficult for Congress to codify the norms in a way that could restrain a President” and listing examples); Michael R. Dreeben, Robert Jackson’s The Federal Prosecutor Revisited, 139 Harv. L. Rev. F. 173, 174 (2026) (“The Supreme Court’s modern view of the unitary executive provides a roadmap for upending the Department’s traditions of independence and impartiality; it invites the Executive to deploy the Department’s power for partisan ends.”). ↑
7. For the contrary view, see Bruce A. Green & Rebecca Roiphe, Can the President Control the Department of Justice, 70 Ala. L. Rev. 1, 75 (2018) (“The Constitution does not determine whether ultimate authority rests with the President or the prosecutors, leaving Congress to decide.”). Compare Morrison v. Olson, 487 U.S. 654, 669, 695 (1988) (Rehnquist, C.J., for the Court) (upholding Independent Counsel law notwithstanding that it is “undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity”) with id. at 726 (Scalia, J., dissenting) (describing “a prosecutor” as “the virtual embodiment of the power to ‘take care that the laws be faithfully executed’”). ↑
8. This article uses the term “abusive prosecutions” to encompass cases unconstitutionally brought as “instrument[s] of oppression.” See discussion in Part II infra; see also Morrison v. Olson, 487 U.S. 654, 711 (1988) (Scalia, J., dissenting) (arguing the executive has “exclusive power” to prosecute, but courts may dismiss “malicious prosecutions”); Jeffrey Bellin, Faithless Prosecution, 95 Geo. Wash. L. Rev. (forthcoming 2027) (calling the vindictive and selective prosecution doctrines “undertheorized” and “poorly suited to address the new problem of a politicized DOJ” and urging courts “to recognize a third constitutional limit on charging based in the Take Care Clause” and thus develop “a doctrine barring ‘faithless prosecutions’”) (manuscript at 5, 48). ↑
9. See also Amanda Terkel & Lawrence Hurley, Trump, Asked if He Has to ‘Uphold the Constitution,’ Says, ‘I Don’t Know,’ NBC News (May 4, 2025), https://www.nbcnews.com/politics/trump-administration/trump-asked-uphold-constitution-says-dont-know-rcna204580 (quoting President Trump as responding “I don’t know” when asked if he has to uphold the Constitution). ↑
10. Although in the just-completed Supreme Court term, Trump v. Slaughter, 609 U.S. ___ (2026) moved constitutional law closer to the model of a unitary executive, Trump v. Cook, 609 U.S. ___ (2026) showed that this unity is not complete. But regardless of the reach of the theory, and no matter how much power it confers on the President, it cannot justify the President’s use of that power in an unconstitutional manner. ↑
11. See also Farrah Tomazin, Trump Wrongly Claims He’s Crime Chief as He Blasts ‘Unpatriotic’ Bolton, Yahoo News (Aug. 22, 2025), https://www.yahoo.com/news/articles/trump-wrongly-claims-crime-chief-163741553.html (similar); Nicholas Riccardi, Trump Ran on a Promise of Revenge. He’s Making Good on It, NBC News (Aug. 23, 2025), https://www.nbcwashington.com/news/national-international/trump-ran-promise-revenge-making-good/3979201/(“I could know about it. I could be the one starting it,” the President told reporters. “I’m actually the chief law enforcement officer.”) ↑
12. The Department of Justice’s historical credo is carved into the rotunda of the Attorney General’s Office: “The United States Wins Its Point Whenever Justice Is Done Its Citizens in the Courts.” Josh Geltzer, Law Day and the Need for Virtue in Government Lawyering, Just Secur. (May 1, 2020), https://www.justsecurity.org/69971/law-day-and-the-need-for-virtue-in-government-lawyering/. ↑
13. See also Ali Rogin & Jonah Anderson, Senators Question Blanche on Trump Loyalty, Jan. 6 Cases and Epstein Files, PBS News (July 15, 2026), https://www.pbs.org/newshour/show/senators-question-blanche-on-trump-loyalty-jan-6-cases-and-epstein-files (discussing questions about Blanche’s personal relationship with President Trump). ↑
14. In re Grand Jury Subpoenas Nos. __ & __, 823 F. Supp. 3d 1, 6 (D.D.C. 2026). ↑
15. The indictments in the Eastern District of Virginia against Comey and James were dismissed because Lindsey Halligan, who obtained the indictments, was unlawfully appointed as Interim U.S. Attorney. United States v. James, 810 F. Supp. 3d 752, 754 (E.D. Va. 2025); United States v. Comey, 810 F.Supp.3d 768, 771 (E.D. Va. 2025). Reportedly, another grand jury in the Eastern District of Virginia twice rejected the government’s subsequent attempt to reindict James. Hannah Rabinowitz et al., Justice Department Fails to Reindict Letitia James for a Second Time, CNN (Dec. 11, 2025), https://www.cnn.com/2025/12/11/politics/justice-department-fails-reindict-letitia-james-second-time. Comey was subsequently indicted on different charges in the Eastern District of North Carolina. Alanna Durkin Richer & Eric Tucker, Ex-FBI Director Comey Indicted Again, in a Probe Over an Online Post Officials Call a Trump Threat, Associated Press (Apr. 28, 2026), https://apnews.com/article/comey-indicted-seashell-photo-86-47-a7fdd67891a7f74bc6fd8ce4d3d4170a. ↑
16. Compare United States’ Response in Opposition to Defendant’s Motion to Dismiss Indictment Based on Vindictive and Selective Prosecution at 16, United States v. Comey, No. 1:25-CR-272 (E.D. Va. Nov. 3, 2025) (quoting President Trump’s response when asked whether an indictment of Comey was imminent: “I can’t tell you what’s going to happen because I don’t know yet. Very professional people, headed up by the Attorney General, [Deputy Attorney General] Todd Blanche and [U.S. Attorney] Lindsey Halligan . . . they’re going to make a determination. I’m not making that determination. I think I’d be allowed to get involved if I want, but I don’t really choose to do so.”) with id. at 40 (“Indeed, given the nature of the allegations lodged against a former Executive Branch agency head, ‘it would have been surprising had the highest-level officials not been involved in the decision to prosecute’”) (quoting United States v. Lindh, 212 F. Supp. 2d 541, 568 (E.D. Va. 2002)). ↑
17. See also Malcolm Ferguson, Trump Makes Clear No One Can Rule Against Him as He Threatens Enemies, The New Republic (Oct. 15, 2025), https://newrepublic.com/post/201828/trump-chief-law-enforcement-officer-threatens-enemies (“And I’m allowed to find out [about investigations], I’m allowed, in theory, the ‘chief law enforcement officer’”). ↑
18. Similarly, pointing to the Take Care Clause, Professor Bellin has called for courts to recognize, and void, “faithless prosecutions” by the President or those he directs. See supra note 8. ↑
19. In re Grand Jury Subpoenas Nos. __ & __, 823 F.Supp.3d 1, 14 (D.D.C. 2026) (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)). ↑
20. In re Grand Jury Subpoenas, 835 F.Supp.3d 947, 955 (D. Minn. 2026); cf. Fulton Cnty. Bd. of Registration and Elections v. United States, 836 F.Supp.3d 1305, 1309 n.2, 1315 (N.D. Ga. 2026) (holding that “in pursuing the Subpoena [for records relating to election workers] the DOJ is engaged in an ‘arbitrary fishing expedition,’ such that the Subpoena is unreasonable and must be quashed” and noting that “no evidence has been presented to the Court that the actual Grand Jury in the Northern District of Georgia seeks this information, as opposed to the out-of-district prosecutors who the DOJ has appointed to lead this inquiry who have served this Subpoena in the name of the Grand Jury.” (quoting Trump v. Vance, 591 U.S. 786, 805 (2020))). ↑
21. Courts may take judicial notice of the public statements of the President and other officials. See, e.g., cases cited at notes 19-20, supra; Trump v. IRS, 836 F.Supp.3d 1225, 1233 n.3 (S.D. Fla. 2026) (“The Court sua sponte takes judicial notice of articles reporting on relevant events attendant to this case, dockets of other cases, and statements the Parties made. . . . Moreover, the Department of Justice has directed courts to look to unsworn public statements as binding party admissions.”). ↑
22. See, e.g., United States v. Koh, 199 F.3d 632, 640 (2d Cir. 1999) (explaining that a defendant can make out a vindictive prosecution claim by showing that the prosecutor “was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a ‘stalking horse.’”) (quotation marks and citation omitted); United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir.) (rejecting claim of vindictive prosecution because defendant failed to allege that anyone at the charging office bore him any impermissible ill-will and because he had not demonstrated that the decision to prosecute him “was not based on the ‘usual determinative factors’”); United States v. Monsoor, 77 F.3d 1031, 1035 (7th Cir. 1996) (holding that in order to make out a vindictive prosecution claim, “[a] defendant must show that the ill will, whoever its bearer, actually motivated his prosecution” and that the referring entity “prevailed upon the prosecutor in making the decision to seek an indictment”). ↑
23. See also 28 U.S.C. § 519 (2024) (directing the Attorney General to “supervise all litigation” and “direct all United States attorneys . . . in the discharge of their respective duties”). ↑
24. Fed. R. Crim. P. 1(a)(1), 1(b)(1) (defining “attorney for the government” to include “(A) the Attorney General or an authorized assistant; (B) a United States attorney or an authorized assistant; (C) when applicable to cases arising under Guam law, the Guam Attorney General or other person whom Guam law authorizes to act in the matter; and (D) any other attorney authorized by law to conduct proceedings under these rules as a prosecutor”). ↑
25. As Chief Justice Roberts further explains:And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [the President] in the performance of [the President’s] constitutional duty to ‘preserve, protect, and defend the Constitution.’”Trump v. United States, 603 U.S. 593, 620 (2024) (quoting Mitchell v. Forsyth, 472 U.S. 511, 520 (1985) (quoting U.S. Const. Art. II, § 1, cl. 8)) (emphasis added). ↑
26. Prakash, supra note 3, at 1721; see also id. at 1722 n. 125 (explaining that nothing “in the Constitution requires Congress to provide the president prosecutorial support,” but that “once Congress creates official prosecutors, they are under the president’s direction because they help carry into execution the president’s powers.”); Saikrishna Bangalore Prakash, Too Unitary, 135 Yale L.J.F. 533, 552-53 (2026) (“The President, and not the Attorney General, is the chief law-enforcement officer of the United States. . . . [T]he Constitution authorizes the President to superintend and control the legal interpretations of his mere instruments. But . . . . he lacks constitutional power to delegate his constitutional powers.”). ↑
27. No prosecutor — including the President — can exercise “prosecutorial discretion” to engage in an abusive prosecution. As the Supreme Court has made clear, “‘the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation’ so long as ‘the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). See U.S. Dep’t of Just., Just. Manual § 9-27.220 (2023) (setting out the factors that a federal prosecutor must consider before bringing charges); id. at § 9-27.260 (describing “[i]mpermissible [c]onsiderations” when deciding whether to bring charges, including: “[t]he person’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs”; “[t]he attorney’s own personal feelings concerning the person, the person’s associates, or the victim”; or “[t]he possible effect of the decision on the attorney’s own professional or personal circumstances”). ↑
28. See United States v. Goodwin, 457 U.S. 368, 373 (1982) (“Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to ‘presume’ an improper vindictive motive. Given the severity of such a presumption, however . . . the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.”). ↑
29. See, e.g., Graig Graziosi, Kash Patel Instructed by the White House to Oversee Investigation into NYT Journalists, Indep. (July 11, 2026), https://www.the-independent.com/news/world/americas/us-politics/trump-kash-patel-nyt-investigation-b3013312.html (quoting FBI Director Kash Patel as confirming, regarding the investigation of journalists, “I was at the White House, true, and the fake news will find out why soon”); Alan Feuer, Vance Announces New Justice Dept. Fraud Post to Be ‘Run Out of the White House,’ N.Y. Times (Jan. 8, 2026), https://www.nytimes.com/2026/01/08/us/jd-vance-justice-dept-fraud-post.html (reporting on plans for a new “high-ranking position” at the DOJ “with broad authority to investigate fraud across the country” set to “answer directly” to the President and Vice President and “run out of the White House”). ↑
30. Cf. The Southern Poverty Law Center’s Motion to Show Cause Regarding the Superseding Indictment at 5-10, 13, United States v. S. Poverty L. Ctr., No. 2:26-cr-0139 (M.D. Ala. June 3, 2026) (alleging that DOJ’s release to the media of an unsigned copy of a superseding indictment violated Fed. R. Crim. P. 6(e)’s secrecy provisions and the Justice Manual’s confidentiality policy and requesting a show cause hearing to explore the possibility for sanctions). ↑
31. Fed. R. Crim. P. 6(e)(3)(B); see also Disclosure of Grand Jury Matters to the President and Other Officials, 17 Op. O.L.C. 59, 59 (1993) (concluding that grand jury information may be shared with the President and National Security Council officials where necessary to assist in the enforcement of federal criminal law, or to protect national security, but emphasizing requirement to provide notice of such disclosures to the court). ↑
32. See also Alan Feuer, Ex-C.I.A. Chief Asks for Order Forcing Trump Administration to Preserve Records, N.Y. Times (July 1, 2026), https://www.nytimes.com/2026/07/01/us/politics/john-brennan-investigations-records.html (describing request filed by former CIA Director John Brennan’s legal team to require prosecutors to preserve records for future discovery “in anticipation of bringing a motion for vindictive and selective prosecution if charges against Mr. Brennan are ultimately filed”). ↑
33. It is not the law, as the government suggested in its Motion to Reconsider in Yuan, that to be part of the prosecution team one must have been “‘actively involved in trial preparation, [the] production of evidence, [or the] examination of witnesses’” or have “‘work[ed] hand in hand with’ law enforcement in investigating and ‘presenting [Defendant’s] case before the courts.’” Motion to Reconsider at 1, United States v. Yuan, No. 4:25-cr-00687 (S.D. Tex. June 9, 2026) (quoting Fierro v. Johnson, 197 F.3d 147, 155-56 (5th Cir. 1999)). Rather, as the Justice Manual makes clear, the team includes all “federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case.” U.S. Dep’t of Just., Just. Manual § 9-5.001 (2020) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)). While the court did grant the motion to reconsider in Yuan it did so on the ground that “the government[’]s response …that identifies BIS documents and serves them upon the defendant . . . constitutes the relevant materials available to the prosecution team.” ↑
34. Regardless of whether the unitary executive theory posits that the President must act as Chief Prosecutor, see Prakash supra note 3, at 1721-22, or instead may choose to do so in particular matters while otherwise delegating responsibility to the Attorney General, in either case the Executive voluntarily submits itself to the Judiciary by choosing to go forward with a prosecution. ↑
35. See also Prakash, supra note 26, at 545 (“The President must honor judicial judgments, a duty immanent in the separation of judicial power from executive power.” (first citing William Baude, The Judgment Power, 96 Geo. L.J. 1807 (2008); then citing Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L . Rev. 1267, 1303-13 (1996); and then citing Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 147-48, 152-54 (1999))). ↑
36. United States v. Abrego Garcia, 350 F.R.D. 557, 562-63 (M.D. Tenn. 2025). ↑
37. Id. at 561. ↑
38. United States v. Mangione, 25-CR-00176, 2025 WL 2715733, at *1 (S.D.N.Y. Sep. 24, 2025). ↑
39. Id. ↑
40. The Local Rules for the United States District Courts for the Southern and Eastern Districts of New York — like those in many other federal district courts — state that “[t]he court, on motion of either party or on its own motion, may issue a special order governing matters such as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury.” S.D.N.Y. & E.D.N.Y. Loc. Crim. R. 23.1(h). An extrajudicial statement by the President acting as Chief Prosecutor would be a statement by a “party” within the meaning of this provision. ↑
41. United States v. Koubriti, 305 F. Supp. 2d 723, 765 (E.D. Mich. 2003). ↑
42. Id. at 760. ↑
43. Id. ↑
44. See Nicholas R. Parrillo, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, 131 Harv. L. Rev. 685, 691 n.17 (2018):While the judicial power to enjoin and find in contempt an agency official is not seriously questioned, it is uncertain whether, as a constitutional matter, the President could be enjoined or held in contempt. In any event, there are ways for judges to indirectly control much presidential action. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 825-29 (1992) (Scalia, J., concurring) (arguing that there are no historical examples of courts enjoining the President in his official capacity and that such injunctions would violate the separation of powers, but conceding that injunctions usually are available against the subordinate officials who are necessary to carry out a President’s order); United States v. Nixon, 418 U.S. 683, 692 (1974) (“The issue whether a President can be cited for contempt could itself engender protracted litigation . . . .”); Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 Colum. L. Rev. 1612, 1678-79 (1997) (noting that a few district court orders have run against the President and that noninjunctive declarations of the law have in fact induced the President to conform to a court’s holding). ↑
45. 603 U.S. 593, 642 (2024) (holding that the President “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts”). ↑
46. See, e.g., cases cited at notes 19-20, supra. ↑
47. Trump v. IRS, 836 F.Supp.3d 1225, 1262 (S.D. Fla. 2026). The Eleventh Circuit subsequently denied the motion for stay pending appeal filed by Trump and other plaintiffs. ↑

FEATURED IMAGE: A banner showing a picture of U.S. President Donald Trump is displayed outside of the Robert F. Kennedy U.S. Department of Justice (DOJ) building on May 29, 2026 in Washington, DC. (Photo by Kevin Carter/Getty Images)