The Potential Dangers of Prosecutorial Discretion

Social media are exploding today reacting to the headlines as FBI director James Comey announced a recommendation of no charges against Hillary Clinton. Comey stated that Secretary Clinton, or her colleagues, were “extremely careless in their handling of very sensitive, highly classified information” and while there is evidence of “potential violations of the statutes regarding the handling of classified information” that “no reasonable prosecutor would bring such a case.”[1] Depending on your political blinders, this likely makes you either very happy, or very angry.  Either way, it is unlikely that minds were changed regarding Clinton and the email controversy.

It is all but a foregone conclusion that the Department of Justice will, at least in this case, follow the recommendations of the FBI and decline to press charges.[2] What this situation helps illustrate, political differences aside, is the power of prosecutorial discretion in the American legal system.

“The term "prosecutorial discretion" refers to the fact that under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges. This authority provides the essential underpinning to the prevailing practice of plea bargaining, and guarantees that American prosecutors are among the most powerful of public officials. It also provides a significant opportunity for leniency and mercy in a system that is frequently marked by broad and harsh criminal laws, and, increasingly in the last decades of the twentieth century, by legislative limitations on judges' sentencing discretion.”[3]

On its face, prosecutorial discretion is a great thing. It presumes that reasonable people will decline to bring unreasonable charges. Many would argue that this is yet another check on unfettered government power. And, there is merit to those idealistic positions. Like all ideological positions, there is a likelihood that flaws in that position are ignored.[4]  One of the weaknesses of allowing such discretion is that leaves itself open to real criticism that it appears those who offer less resistance will be the most likely to be prosecuted.  It is no secret that prosecutors like to win cases. In many instances, a prosecutors job stability and advancement are predicated upon victory in the courtroom.  In other words, the wealthy and those with connections and resources, the argument goes, will be more likely to avoid prosecution than those with none of those attributes.[5]  Said yet another way, the criticism of prosecutorial discretion is that when facing a wealthy, powerful, and well-connected defendant, that “no reasonable prosecutor would bring such a case.”

--By Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See:

[2] See:

[3] See:

[4] See:

[5] See:;