Robert H. Jackson: “The Federal Prosecutor”

Explanation and Analysis of the Document

On April 1, 1940, Jackson, who had been appointed attorney general only three months earlier, gave one of the most important speeches of his career. Entitled “The Federal Prosecutor” and delivered to a gathering of U.S. attorneys serving in each of the nation's federal judicial districts, the speech laid out Jackson's understanding of the duties and role of U.S. attorneys—the federal prosecutors. The speech outlined Jackson's aspirations in reorganizing and cleaning up the Department of Justice, which was badly disorganized and demoralized at the time that Jackson was appointed attorney general.

The theme of the speech is that with great power comes grave responsibility. Delineating the powers of the prosecutor, Jackson reveals how few factors limit that power. As Jackson notes, the primary limitations on prosecutorial power are logistical: There simply are not enough people in the prosecutor's office to investigate every potential crime, and there is a distinction between the jurisdictions of federal and local law enforcement. These limitations, in turn, create the greatest of the prosecutors' powers—the ability to pursue cases at their discretion. It is the decision of a prosecutor whether citizens will be indicted, investigated, charged, or made the subject of public or private whisper campaigns—that is, the coordinated circulation of rumors, in public or in private circles, designed to defame or injure an individual's reputation.

Jackson approaches the question of power and responsibility from a slightly different angle in order to make his greater point. The prosecutor does not choose simply which cases to pursue but also which defendants to prosecute. This is the crux of the prosecutor's responsibility, to choose cases on the merits of the alleged crimes rather than on the basis of who the defendant is or what he or she represents. This was a particularly pertinent point in the months shortly before the United States entered World War II, and Jackson voices a strong warning about the negative impact that an overzealous prosecutor might have on civil liberties and what he refers to as traditional American concepts of liberty and freedom. He emphatically advises prosecutors against targeting “subversive” elements, reminding them that most constitutional freedoms Americans enjoy were once punishable, subversive offenses. Moreover, Jackson says, it is best to keep in mind that at one time both “Republican” and “Democrat” were not descriptors of political affiliation, but epithets denoting radicalism and subversiveness. The prosecutor's duty is to protect the spirit as well as the letter of American civil liberties, Jackson notes, and thus the prosecutor is constrained to act fairly and apolitically at all times.

Jackson directed the Department of Justice along the lines he laid out in this speech. His articulation of the responsibilities incumbent on the federal prosecutor and his precise formulation of the dilemma faced by the prosecutor—to seek to punish and eliminate crime but to do so while respecting the American tradition of civil liberties—foreshadowed his approach to problems of civil liberties as an associate justice on the Supreme Court. “The Federal Prosecutor” retains such relevance that numerous subsequent attorneys general have directly quoted from it to summarize their own views of the duties and responsibilities of federal prosecutors.