# Prosecutorial Discretion **Prosecutorial discretion** is the executive's largely unreviewable power to decide which crimes to charge, against whom, and whether to charge at all. In federal practice it is the single largest determinant of who is prosecuted, larger than the statute, the evidence or the sentence, because it operates before any court acquires jurisdiction over the matter. Its defining feature is asymmetry of review. A decision to charge is tested repeatedly: by the grand jury, on motions, at trial and on appeal. A decision **not** to charge is tested nowhere. The idea runs back through *United States v. Nixon* (1974), which described the executive's "exclusive authority and absolute discretion" over whether to prosecute. *Heckler v. Chaney* (1985) then generalized it: an agency's refusal to act is presumptively unreviewable under the APA, and the Court expressly analogized that refusal to "the decision of a prosecutor … not to indict." A declination generates no record, no docket entry and no notice to anyone. The only constraints are internal: the approval requirements of the [[Justice Manual]] and the supervisory chain above the line prosecutor. The discretion is bounded exactly as far as the Department chooses to bound itself. That is why changes to the internal supervision layer matter structurally in a way that changes to criminal statutes usually do not. See [[How a Federal Prosecution Begins and Ends]] for where discretion enters and where it exits the pipeline. ## The three doctrines that police it, and why they rarely bite - **Selective prosecution.** Charging based on race, religion or other protected characteristics violates equal protection (*Wayte v. United States*, 1985). But *United States v. Armstrong* (1996, 8–1) set the discovery threshold high. A defendant must first produce credible evidence that similarly situated people of another race could have been prosecuted and were not, and that evidence usually sits in the government's own files. The claim is easy to state and nearly impossible to prove. - **Vindictive prosecution.** Punishing a defendant for exercising a legal right, such as appealing or suing, violates due process (*Blackledge v. Perry*, 1974; *United States v. Goodwin*, 1982). Courts will presume vindictiveness only when the sequence of events makes retaliation realistically likely, and that showing has historically been rare. - **Rule 48(a) dismissals.** The government needs "leave of court" to dismiss an indictment, but the D.C. Circuit has read that requirement narrowly. In *United States v. Fokker Services* (2016) it described judicial review of charging decisions as sharply limited. In the [[Michael Flynn]] case, a panel ordered the district court to grant DOJ's dismissal motion in June 2020. The en banc court vacated that order in August 2020, and the pardon later mooted the question. ## The 2025–26 stress test The second Trump Justice Department ran every one of these doctrines at once, and the doctrines began producing results. - **Dismissal as a bargain.** When DOJ moved to drop the corruption case against [[Eric Adams]], Judge Dale Ho granted the dismissal on April 2, 2025, because a court cannot force a prosecution. He dismissed **with prejudice**, though, finding that "everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions." The case shows the limits of Rule 48(a). A court cannot keep a case alive, but it can deny the executive a charge it can revive whenever the defendant needs a reminder. - **Vindictiveness found.** On May 22, 2026, Judge [[Waverly Crenshaw]] dismissed the smuggling indictment against [[Kilmar Abrego Garcia]] as vindictive. Homeland Security Investigations had opened a case on him in December 2022, closed it on April 1, 2025, and reopened it on April 17, 2025 — a week after the Supreme Court ordered the government to facilitate his return. See [[Kilmar Abrego Garcia Timeline]]. The court found that "absent Abrego's successful lawsuit … the Government would not have brought this prosecution." The government has appealed. - **The declination made visible.** In early September 2026, Justice Department leadership overruled a line prosecutor in Minnesota who wanted a deprivation-of-rights count against ICE officer [[Christian Castro]] over the January shooting of Julio Sosa-Celis ([[ICE Shooting of Julio Sosa-Celis]]). They allowed only a false-statements charge. The prosecutor, AUSA Matthew Evans, wrote that he had "objected in the strongest possible terms." CBS News sources say he was then fired and is under a leak investigation. Castro has pleaded not guilty. The civil-rights count that was not brought left no docket entry. Only the internal dispute and the firing put it on the record, which is the unreviewable half of discretion described above. - **Charging the president's adversaries.** The [[Comey Indictment]] and the parallel [[Letitia James]] case were dismissed on November 24, 2025 on appointment grounds, without reaching the vindictive-prosecution motions. Comey was re-indicted in April 2026. See [[Trump Retribution Doctrine]]. The pattern: the doctrines were written for a system in which the internal checks mostly held. Courts are now being asked to supply those checks from outside, through doctrines built to stay deferential. ## See also - [[How a Federal Prosecution Begins and Ends]] - [[Justice Manual]] · [[Grand Jury]] - [[Department of Justice]] · [[Public Integrity Section]] · [[Weaponization Working Group]] - [[Trump Retribution Doctrine]]