What Fischer v. United States Gets Wrong About Prosecutorial Discretion

Abstract

Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021. Making good on those worries, the conservative majority in Fischer v. United States, rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical. This article attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases. A survey of ten January 6 cases directly answers the Justices’ hypotheticals and lends strong support to the Fischer dissent’s conclusion that such “fear is overstated.” Those real cases also support Solicitor General Elizabeth Prelogar’s argument that Department prosecutors have demonstrated meaningful restraint in bringing the most serious charges against alleged rioters. And because it took just a couple of hours to find ten cases proving the point, this case study suggests that the Justices’ fears of prosecutorial overreach in politically charged cases—which clearly animated the Fischer majority’s textual analysis—are unnecessary and should not have guided the decision-making process in Fischer, or in other relevant pending cases.