On October 1, 2024, Zuckerman Spaeder partner Sara Alpert Lawson moderated a panel for the American Bar Association (“ABA”) titled “Prosecutorial Independence and the Rule of Law.” The panel consisted of three prosecutorial heavyweights: Fmr. Assistant Attorney General Leslie Caldwell, Fmr. Senator Doug Jones of Alabama, and Fmr. Deputy Attorney General of the United States Larry Thompson. It was an interesting discussion covering (1) prosecutorial independence and discretion and the rule of law; (2) the mission of the Department of Justice (“DOJ” or the “Department”); and (3) the impact on the rule of law from the Heritage Foundation’s Project 2025 proposed Mandate, as well as its impact if the proposed recommended restructuring of the DOJ and Federal Bureau of Investigation was carried out.

A 1971 Supreme Court Decision of Doubtful Vitality Thwarts § 1983 Liability for Mistaken-Identity Arrests and Stifles Development of Clear Constitutional Rules 

Kafka would love qualified immunity.¹ Not only does current qualified immunity doctrine allow law enforcement officers to arrest and hold the wrong person—sometimes for an extended period—without liability, it also inhibits the development of constitutional doctrines that would prevent erroneous arrests and detentions in the future, because courts can dismiss civil damages claims on the basis of qualified immunity without even having to consider whether, for purposes of those future cases, such an arrest or detention is constitutionally permissible. Recent appellate decisions suggest that modern computer systems have made the problem of mistaken arrests and detentions based on records sent across state lines worse, even though it should now be much easier to quickly check photographs or fingerprints in another jurisdiction that could confirm or definitively refute the arrestee’s identity.

In a new article, Zuckerman Spaeder lawyers Bryan Thomson and Marty Himeles have analyzed the effects of the Supreme Court’s 2013 decision ending the “preclearance” requirement for new voting standards, practices, and procedures in states with a history of discriminatory voting practices. The full article, titled Ten Years after Shelby County: The Effect of Ending Preclearance on Voting Rights, is available here.

Together, the Supreme Court’s decisions in Loper Bright and Corner Post open a path to attack federal regulations issued by agencies (and upheld by courts) many years ago. As Justice Jackson put it in her Corner Post dissent: “Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation. A brand new entity could pop up and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself. No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season.”¹

For too long, judges have been permitted at sentencing to consider anything they deem “relevant,” including allegations that were considered and rejected by a jury. So-called “acquitted conduct sentencing” clearly offends commonsense notions of fairness. And, as discussed in a prior post by Zuckerman Spaeder attorneys David Reiser and Bryan Reines, the practice may also violate the Double Jeopardy clause.

The American Bar Association’s National Institute on White Collar Crime has long focused on regulating, prosecuting, and defending evolving permutations of fraud, or allegedly fraudulent conduct. At the 39th annual event, held March 6-8 in San Francisco, a new focus was on how various agencies intend to regulate artificial intelligence (“AI”) in the white collar arena. Some announcements were new to the conference, while others repeated agency guidance issued in recent months. Taken together, the announcements confirm that regulators are unified in their concern that left unchecked, AI could amplify financial crimes and their determination to nip that threat in the bud.

Telling on yourself is not an intuitive defense. But federal regulators and prosecutors at last week’s ABA National Institute on White Collar Crime urged companies and executives to consider doing so or risk being beat to the punch by employees and competitors. With their announcements of new whistleblower policies, the Department of Justice and the United States Attorney’s Office for the Northern District of California have intensified an already tough decision facing a company that becomes aware of misconduct: whether to voluntarily disclose to regulators.

In federal court, “not guilty” doesn’t always mean no punishment. Under a quirk of federal sentencing law, judges are permitted to consider at sentencing anything that they consider relevant, including conduct for which a jury has explicitly found the defendant not guilty.¹ In the 1997 Supreme Court case United States v. Watts, a majority of the Justices explained the perverse logic behind this practice. While a defendant may be convicted only of crimes proven beyond a reasonable doubt, he may be sentenced based on facts established by the lower “preponderance of the evidence” standard.² In other words, if the jury acquits the defendant on one count but convicts on at least one other, the judge can increase the sentence on the basis of the acquitted conduct so long as the judge concludes that conduct probably occurred.

At Tuesday’s oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, Justice Kagan asked the government’s counsel whether there is “any interaction” between the statute of limitations question in that case and the Court’s consideration of whether to abandon Chevron deference in two cases argued a month earlier.¹ The Assistant to the Solicitor General responded cautiously that “a decision for Petitioner here would magnify the effect of any other decisions changing the way that this Court or other courts have approached administrative law questions,” because it could mean retroactively applying new standards to administrative agency actions taken decades earlier.² The decision in Corner Post could be hugely consequential if the Supreme Court recasts or rejects Chevron, because many regulations that were upheld under a deferential standard would be fair game for renewed challenges under a new and likely more rigorous standard of review.

The Constitution requires judicial independence in Article III. As Hamilton observed in “Federalist 78”: “The standard of good behavior for the continuance in office of the judicial magistracy . . . . is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

So why would conferring independence on officials within the executive branch whose sole responsibility is to adjudicate disputes between an agency’s enforcement arm and a private party infringe on the President’s duty to take care that the laws are faithfully executed? In SEC v. Jarkesy, targets of SEC enforcement, supported by a long list of amici, argue that they have a constitutional right to administrative enforcement proceedings before officers who are directly removable by the President under the Take Care Clause. This post considers whether absolute removal power by the President would in fact ensure that the laws are more faithfully executed, rather than allowing administrative law judges (ALJs) with removal protections to adjudicate disputes like Article III judges do.