Recommended Citation
Scott Schumacher, Curb Their Enthusiasm: Controlling the Discretion of Creative Prosecutors, 24 U.N.H. L. Rev. 283 (2025), https://digitalcommons.law.uw.edu/faculty-articles/1173
Publication Title
University of New Hampshire Law Review
Keywords
prosecutorial discretion
Document Type
Article
Abstract
On January 6, 2021, a mob of supporters of then-president Donald Trump stormed the U.S. Capitol Building to disrupt the certification by Congress of the presidential election. Joseph Fischer was a member of that mob, and he was one of the individuals who forced his way into the Capitol Building. He was charged with multiple criminal counts, including obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c) for allegedly attempting to delay Congress’ election certification. In Fischer v. United States, the United States Supreme Court reversed the obstruction charge, holding that section 1512(c) did not apply to Fischer’s conduct. Fischer is the most recent, and certainly the most high-profile obstruction of justice case to be overturned. However, it is not the only loss for the government in obstruction prosecutions. There have been several in recent years. And while it is certainly not unheard of for the government to lose in criminal cases, these cases demonstrate a disturbing trend of federal prosecutors being overly creative in deciding which cases to bring.
Prosecutors are arguably the most powerful actors in the criminal justice system, and their decision on whom to prosecute is virtually unreviewable. Thus, prosecutors bringing cases beyond the intent of Congress is concerning. This article examines the causes and potential solutions to the problem of overly creative prosecutors. In doing so, the article reviews prosecutorial standards from around the globe.