Trump, Obama, and the DOJ: Who Decides Who to Prosecute?

The Department of Justice is not an independent agency. It exists within the executive branch, under the ultimate authority of the President of the United States. The question of prosecutorial discretion, of who decides which cases go forward and which do not, is not an open one. It is a settled matter of constitutional law and precedent. And yet, each time an administration exercises this authority in a politically charged case, outrage erupts as if it were an unprecedented breach of democratic norms rather than the very structure of the American government as designed.

This week’s resignation of interim U.S. Attorney for the Southern District of New York, Danielle Sassoon, over President Trump’s decision to dismiss the prosecution of New York City Mayor Eric Adams, echoes a similar moment in 2009. Then, President Obama’s Justice Department dropped the voter intimidation case against members of the New Black Panther Party, a decision that led to the resignation of career DOJ attorney J. Christian Adams. The consistency is striking: in both cases, the executive exercised its legal prerogative, and a subordinate, disagreeing with that exercise of discretion, chose to resign. That is their right, but the decision remains the President’s.

The outrage over Trump’s move to dismiss the Adams case has been predictably hyperbolic, but legally baseless. The letter from Acting Deputy Attorney General Emil Bove to Sassoon makes this point with methodical clarity. Sassoon’s resignation, far from being a noble stand for the rule of law, was a fundamental misunderstanding of her role. Prosecutors do not operate in a vacuum; they serve at the pleasure of the President, who is the only elected official in the executive branch and the ultimate authority on prosecutorial decisions.

The Law Is Clear: The President Controls Prosecution

The legal framework governing these decisions is unambiguous. The Supreme Court has long recognized the President’s control over federal prosecutions. In United States v. Nixon (1974), the Court reaffirmed that the Attorney General and, by extension, all federal prosecutors act as delegates of the President. Similarly, the Federal Rules of Criminal Procedure, specifically Rule 48(a), grant the Attorney General broad discretion to dismiss charges, provided the decision is not made in “bad faith.” Courts have repeatedly deferred to executive decisions to drop cases, as seen in United States v. Blaszczak (2022), where the Second Circuit underscored the “virtually absolute right” of the government to discontinue prosecutions.

Bove’s letter makes clear that the decision to dismiss the Adams case was made in accordance with this longstanding principle. He cites President Trump’s Executive Order 14147, which mandates that the DOJ correct prior weaponization of law enforcement, and Attorney General guidance affirming that all prosecutors must align their decisions with the policy direction of the administration. Sassoon’s refusal to comply was not an act of courage but of insubordination.

The Obama Precedent: The Black Panther Case

If critics of Trump’s DOJ decision were sincere in their concern for prosecutorial independence, they would have been just as vocal in 2009 when the Obama administration dropped its case against members of the New Black Panther Party for voter intimidation. The case, brought in the final days of the Bush administration, stemmed from video evidence of armed Panthers standing outside a Philadelphia polling place in an apparent attempt to intimidate voters. The DOJ had already won a default judgment against the defendants when, under Obama’s leadership, the department suddenly moved to dismiss the case. The stated reason? Lack of sufficient evidence.

J. Christian Adams, the attorney who had worked on the case, resigned in protest, much like Sassoon did this week. And yet, the reaction from the media and legal establishment at the time was markedly different. There were no breathless declarations that Obama was subverting the rule of law. No op-eds decrying the politicization of justice. The President had exercised his discretion, and the matter was largely put to rest. The same principle applies today.

Political Cases Require Executive Judgment

The Adams prosecution was steeped in politics. As Bove’s letter details, the case originated under an aggressively anti-Trump U.S. Attorney and gained steam only after Mayor Adams became an outspoken critic of President Biden’s immigration policies. The timing of the indictment, just as the 2024 election cycle was heating up, raised legitimate concerns about selective prosecution. Moreover, the legal theories underpinning the charges were, at best, tenuous, relying on broad interpretations of campaign finance laws that the Supreme Court has repeatedly scrutinized.

As Bove notes, the case’s continuation posed a direct impediment to Adams’ ability to govern and cooperate with federal law enforcement. This, too, is a factor the President has every right to consider. Just as the Obama DOJ determined that the Black Panther case was not worth pursuing, the Trump DOJ determined that the Adams case was politically tainted and should not move forward. The difference in reaction from critics is purely partisan.

Prosecutorial Discretion is Not a One-Way Street

If the principle of prosecutorial discretion is to be respected, it must be applied consistently. Obama’s right to halt a politically charged case must be acknowledged alongside Trump’s right to do the same. The DOJ does not exist to operate outside of presidential control, nor does it exist as an independent power center that can resist the directives of the executive. Those who serve in the department understand this—or at least they should.

Danielle Sassoon, like J. Christian Adams before her, had a choice. She could abide by the decisions of the President or she could resign. She chose the latter, and she did so with a flourish of indignation, but that does not alter the legal reality. The President has the authority to determine which prosecutions go forward. That is not corruption. That is not lawlessness. That is the Constitution.

To suggest otherwise is to reject the fundamental structure of the American government. And that, not Trump’s decision to dismiss a flawed prosecution, is the real threat to the rule of law.

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