How the DOJ Decides Who Gets Charged and Who Doesn’t in America

How does the Justice Department decide who gets charged with a crime and who doesn’t?

In the post-Watergate era, the Justice Department developed policies and institutional safeguards intended to separate political considerations from prosecutorial decisions: typically career attorneys delve into the law and investigate the facts, evaluate the evidence needed to secure a conviction, and recommend whether a case should move forward. However, Trump administration critics say that process is under pressure, pointing to a series of high-profile cases involving political figures and former government officials.

On this episode of UnCommon Law, we explore the doctrine of selective prosecution — the claim that someone was targeted for prosecution because of who they are, what they said, or the political positions they hold. Through the cases involving James Comey, Letitia James, and Eric Adams, legal scholars, journalists, and former Justice Department officials examine how the DOJ decides whether to pursue or abandon a case, and what that process reveals about prosecutorial discretion, independence, and accountability. We’ll also examine the changing role of the Justice Department’s Public Integrity Section, the office created after Watergate to help oversee politically sensitive prosecutions.

Guests:

• Bennett Gershman, professor of law at Pace University and a former prosecutor in the New York State Anti-Corruption Office; author of the treatise Prosecutorial Misconduct
• Stanley Brand, former general counsel to the US House of Representatives and a veteran white-collar defense attorney; now Distinguished Fellow in Law and Government at Penn State Dickinson Law
• John Keller, former chief of the Justice Department’s Public Integrity Section; now a partner at Walden Macht Haran & Williams
• Chris Strohm, senior reporter at Bloomberg News covering the Justice Department