united-states lawyer regulations prosecutorial-discretion professional-ethics
Can federal prosecutors go against the Justice Department&#39;s interpretation of the law?
<p>Suppose that the U.S. Department of Justice (DOJ) has a belief or opinion about what the proper interpretation of a certain statute or Constitutional provision is, and that they have formalized their opinion on this matter in a memo produced by the DOJ's Office of Legal Counsel (OLC).  My question is, can a federal prosecutor, i.e. a prosecutor working for the DOJ, go against such an opinion of the DOJ?  Are there DOJ rules or regulations which prohibit this, and would a prosecutor who went against an opinion of the DOJ be subject to disciplinary actions?</p>

<p>If there are such rules or regulations, do they apply to a Special Counsel?</p>

<p>By the way, this question was inspired by my Politics.SE question <a href="https://politics.stackexchange.com/q/20029/1953">here</a>, which is related to an OLC memo that states that the DOJ does not have the power to indict a sitting President.  I was asking about whether if a federal prosecutor tried to pursue such an indictment anyway, if it would run afoul of DOJ rules and regulations.  But that got me thinking about going against OLC memos in general.</p>

<h2>No</h2>

<p>Federal prosecutors are <em>representatives</em> of the Attorney General of the United States and act on his/her behalf: not on their own account. From the <a href="https://www.justice.gov/jmd/organization-mission-and-functions-manual-attorney-general#ag" rel="nofollow noreferrer">DoJ</a> website:</p>

<blockquote>
  <p>This Act established the Attorney General as head of the Department of Justice and gave the Attorney General <strong>direction and control</strong> of U.S. Attorneys and all other counsel employed on behalf of the United States.</p>
</blockquote>

<p>A prosecutor who willfully ignored the direction of the DoJ acting for the AG is in breach of their duties as an employee and subject to whatever disciplinary action seems appropriate - this would probably result in them looking for another job.</p>

<p>One would hope that the AG would listen to well-reasoned and polite dissent from a prosecutor and might be convinced to change their mind but if they don't the prosecutor has two options: follow their direction or resign.</p>
