Letter to The Massachusetts Lawyers Weekly:
Your Oct. 26 editorial, “Prosecutor deserves praise for courage, professionalism,” is off the mark. It doesn’t take much courage for a lawyer in Massachusetts to write a letter to The Boston Globe trashing Attorney General Barr and President Trump. He is assured of nods of agreement and fawning praise all around.
The letter from Assistant U.S. Attorney Herbert contains no new or hidden information to qualify him as a “whistleblower.” His letter was merely a political argument against Attorney General Barr’s use of prosecutorial discretion. The prominence of attorney Hebert’s political statement was obtained only because of the office he holds as assistant U.S. attorney in the current administration.
Prosecutors have a great deal of discretion in choosing what crimes and persons to charge and what sentences to request from a judge or agree to with a defendant. In Great Britain, from which our system of justice derived, prosecutors were appointed by the king. We all have an interest in the prosecutor making decisions that comport with our own values and sense of fairness.
So, in the United States, prosecutors are directly or indirectly accountable to the public, nearly all being either directly elected or appointed by someone who was elected. Besides the attorney general, the president appoints 93 U.S. attorneys in 94 federal judicial districts. Assistant U.S. attorneys are appointed by the attorney general. Forty-three of 50 state attorneys general are elected and all but two of the remainder appointed by the elected governor.
Thousands of district attorneys or state’s attorneys are elected in counties or other districts around the country. In all of these jurisdictions, prosecutorial discretion — decisions about whom or what to charge and what sentence to recommend — resides in the chief prosecutor. Tens of thousands of assistant prosecutors — assistant DAs, assistant AGs or assistant U.S. attorneys — are appointed by the chief prosecutor. Depending upon the inclination of the chief prosecutor, the assistants are allowed to exercise varying degrees of prosecutorial discretion in routine cases. In sensitive, high-profile or politically charged cases, though, that discretion belongs to the chief prosecutor. The assistant who does not recognize this central limitation should not remain one for long.
Attorney Hebert is free to express himself, but he would be entitled to be called “courageous” only if his political arguments were accompanied by his principled resignation.
Brian R. Merrick
The writer is a retired District Court judge.