This may sound like an easy question.

Legislators make laws, the executive executes laws and the judiciary judges laws.

Sounds simple.

I've heard that the Justice Department is under the executive branch. I've also heard that judges and often presidents can make laws too.

What about the District Attorney (DA)?

I've heard a DA can choose to prosecute or not to prosecute people for virtually any reason.

What would stop a DA from, say, not prosecuting his own family? What would stop a DA from not prosecuting presidents?

In Indonesia we have Prabowo who's pretty obviously broken many laws. He makes ridiculously false claims. Often he later claims that he's being deceived. However, most people know that the claims are so ridiculous that there is no way he doesn't know or should not have known.

Yet he is not even arrested or judged. It seems that there is a political decision not to cause even more problems.

Is this what's happening in the US too?

One of the motives behind this question is the conflict of interests between the executive branch and law enforcement.

It is possible that the legislators create laws so vague that anyone can be sent to jail? Then the Executive Branch simply don't prosecute his "friends".

It seems that there is a strong conflict of interest when the President handles the justice department. It means that the President can pardon or prevent prosecution for say most corrupt bureaucrats. I've heard it's a big problem in most countries.

Basically, I see putting the justice department under the President's control seems to defeat separation of power. So I wonder why it's done that way?

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    If you're wondering why it's not under the judicial branch, I think that would probably be a bad idea. I don't know what it's like in Indonesia, but note that in the U.S., courts can only make rulings on real cases properly brought before them. This might seem like a minor detail at first glance but it's actually a very crucial feature. It means that they cannot "make laws" in any sense of the word unless they receive a case first. Now if they had the power to bring arbitrary cases before them, then they could make any laws they wanted... taking over the legislature's job.
    – user541686
    Commented Jun 11, 2019 at 5:52
  • 2
    This is an excellent question, and there's nothing easy about it.
    – Deacon
    Commented Jun 11, 2019 at 14:58
  • Basically a historical accident because the U.S. followed the prevailing practice in England at the time. Later on, most states addressed this issue by having the attorney general and/or DA be elected independently of the Governor. In many non-common law countries in the continental European civil law tradition, also basically due to historical accident, the prosecuting attorneys office is located in the judicial branch administratively.
    – ohwilleke
    Commented Jun 13, 2019 at 19:25
  • It's more precise to say that the executive and judicial branches can make "law" -- grammatically uncountable -- rather than "laws," grammatically countable, which typically denotes statutes enacted by congress as provided in the constitution. It is a fine distinction of language, to be sure. The practical difference underlying it is that the executive makes regulations (and orders and proclamations) that have the force of law largely because of authority delegated by statute, while the judiciary's power to "make law" comes from its interpretive/deliberative role along with stare decisis.
    – phoog
    Commented Jan 17, 2022 at 10:03

6 Answers 6


I've heard a DA can choose to prosecute or not to prosecute people for virtually any reasons.

The concept is called prosecutorial discretion. It is the authority of the district attorney for each district (and ultimately their attorney general) to choose whether or not to press charges in a case, offer a plea bargain or other alternate sentencing arrangement, or decline to prosecute. As a practical matter, not all cases have enough evidence to convict and the district attorney's office would prefer in many cases to get a plea bargain with a lesser sentence than have to spend the time and resources going through a full court case.

What would stop a DA from, say, not prosecuting his own family? What would stop a DA from not prosecuting presidents?

A district attorney should recuse themselves if a case is personal to them, and either leave the decision in the hands of a neutral assistant district attorney or escalate it to the attorney general. That's not to say that their relationship with a suspect can't cause them to get treated differently anyway, but that's just a fact of life. Since district attorneys are usually voted in such behavior can cause them to lose the next election.

Prosecuting the President is a more complicated topic, but the President has no general statutory immunity to prosecution. The federal Justice Department's current policy is not to press charges against a sitting President, mainly because it would severely undermine their authority and such a drastic move is thought to be better left in the hands of Congress, who can impeach a President in order to have a trial which can result in removing them from office. On the other hand, some commenters have suggested state district attorneys could file charges against the President, and are most likely within their rights to do so. Considering how many other questions have talked about the possible effects of this, I'm going to just leave it there.

I've heard justice department is under the executive branch

The Justice Department is a part of the Executive Branch in the US and is headed by the Attorney General, who is a member of the President's Cabinet (states may have this structure or may have their Attorney General as a separate entity to the governor, and most actually elect their Attorney General rather than appoint them). The idea is that the Executive Branch is responsible for enforcing laws, so the Justice Department should be a part of it. The Attorney General is unique among Cabinet members in that they are considered to have a "special independence" from the President to practice their discretion as they see fit.

I've also heard that judges and often presidents can make laws too.

Not exactly. Only the legislative branch can make statutory laws, but the way other branches interpret and enforce those laws also have force of law as long as they are compliant with statute (except in the specific case of judicial review, where the courts can override the legislature). The President signs "Executive Orders" which outline how the Executive Branch is going to execute laws passed by Congress. Laws usually give the Executive Branch a goal to pursue and money to do it, but leave most of the specifics up to the actual agency executing the law - obviously lawmakers can't account for every individual situation under which the law is being applied. Some Executive Orders have been criticized for stretching a law further than it was intended, and some are criticized for implementing laws in such a way that it undermines the law itself (e.g. by using the funding in a way which is technically conformant but leaves little or no funding for an important objective of the law).

The Judicial Branch (not to be confused with the Justice Department) is ultimately the arbiter of law enforcement (referring to the "enforcement of laws" in general, not just criminal law). The US uses a "common law" system, a part of which is the importance of previous case rulings ("precedent") in current cases. This means that some cases may "make" law by becoming the precedent cited in future cases for how to apply the law to a common fact pattern. Precedent can be overruled by new laws, and can also be tricky to apply since no two cases are exactly the same - sometimes there is some part of the fact pattern of a case that causes the result of the case to be different than precedential cases.

The courts can also choose not to allow enforcement of a particular law if they find that it violates a part of the Constitution or a person's rights. In these cases (which usually involve criminal law but can involve civil law), appeals can be heard by district appeals courts and eventually the Supreme Court. The Supreme Court is the ultimate authority on whether or not a particular law violates the Constitution (and how a law should be interpreted in general), and have the authority to make such rulings on both federal and state laws (which is unique from most of the rest of the government, where the federal government's structure and laws are separate from all state government structure and laws). This is probably the closest process to "making" law outside of the legislative branch - if the Supreme Court rules that a particular law violates the Constitution, the legislative branch has no direct recourse and must either change the law or accept that it will not be enforced (they can also begin the process of passing a constitutional amendment, but that involves the legislatures of the states as well).

Is this what's happening in US too?

I don't know much about Indonesian law or Mr. Prabowo, but false claims made in general are not a violation of law in the US. False claims about a person can be defamatory, but there exist almost no criminal defamation statutes - the person defamed can just be awarded damages and the defamer can be ordered to stop (which it would be a crime to ignore). Most precedent in this case has to do with the First Amendment's guarantee of Free Speech.

  • 1
    The problem with indonesia is we don't have first amendment. So guys like Ahok went to jail for blasphemy and guys like Prabowo goes free.
    – user4951
    Commented Jun 10, 2019 at 16:27
  • 1
    Good answer. It's also worth noting that Executive Orders can (and have) been challenged in court if they overstep the president's constitutional limits. Where these limits exactly are is open to interpretation; some recent orders have been upheld (e.g., the travel ban), while others have been declared unconstitutional (e.g., "defunding sanctuary cities".) Commented Jun 10, 2019 at 16:44
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    @user4951 No, or at least I've never heard of such a thing. It would be very bad policy to press charges in cases where the DA does not believe they have enough evidence to convict, and although there is some concern with plea bargains most people agree that when used fairly they are a good way to reduce the costs of criminal litigation. I didn't really go into it, but a prosecutor could make the call that a person has suffered enough for their crime already as well or that while something was against the law they don't think the person should be punished for it. Commented Jun 10, 2019 at 17:54
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    There's also no way besides leaving it up to the prosecutor to decide what someone is charged with - the same fact pattern might lead to assault, battery or attempted murder charges, as an example. Which are charged and which the prosecutor believes they can prove beyond a reasonable doubt has to be left up to the prosecutor, there's no other practical way to handle it. Commented Jun 10, 2019 at 17:55
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    The linked CNN story (like the underlying NYT reporting, which it quotes almost throughout) does not mention any potential charges against the president himself personally, only his organization and senior executives. It is not clear whether that includes the president, or he is in fact not one of those executives for whatever intrinsic or extrinsic reason. Commented Jun 11, 2019 at 17:09

What would stop a DA from not prosecuting presidents?

Nothing. In fact, there is an argument that presidents can't be prosecuted for criminal activity while in office. Instead of allowing criminal prosecution while in office, the United States constitution offers a system of impeachment where a president may be removed from office by the legislature (once out of office by impeachment or whatever means, the now private citizen can be prosecuted).

This is part of the system of checks and balances in the American system that prevents one part of the government from rendering another irrelevant.

  1. The judiciary has lifetime terms, but it has limited members and can only rule based on the laws that the legislature passes.
  2. The legislature can only pass laws. It can't execute them. It is limited in what laws it can pass by the constitution as judged by the judiciary.
  3. The executive enforces the laws, including the spending of the budget. But it can't create laws and its enforcement is limited (by the judiciary) to the laws as passed.

The current problem in the US is that different partisan groups differ on how to interpret events.

One side thinks Mueller is a dedicated and honest public servant. The other side points out the inconsistencies in his statements. For example, he virtuously talks of how inappropriate it would be to make a prosecutorial recommendation that would not allow Donald Trump to exonerate himself. Then he makes statements about how if they had found proof that Trump had not committed a crime, they would have exonerated him. Thereby implying that Trump committed a crime.

One side sees that implication and runs with it. The other points out that if Mueller had enough evidence to prosecute, he could have turned it over to the legislature for impeachment, which he hasn't done. That he hasn't done this implies that he did not have enough to prosecute. If such evidence existed, it would have leaked out by now. But instead they have a series of actions that could be interpreted either way. Of course, one side interprets this as obviously meaning that Trump is guilty. The other side interprets this as meaning that Trump is innocent.

Ultimately, any democracy has a simple method for removing a president. Hold an election and vote the sucker out. If that method is not available, then the country is not a democracy. If voters, as the ultimate jury, do not choose to vote the politician out of power, why should some other politician be able to overturn that decision by the voters? The impeachment power exists for egregious cases where a politician has failed to perform the job. But Trump is largely doing the things that he has said that he would do. If voters didn't want him to do those things, then they shouldn't have elected him.

  • Impeachment is in addition to, not instead of, criminal prosecution.
    – phoog
    Commented Jun 10, 2019 at 19:52
  • 1
    IMO it would be helpful to add a sentence or two to explain the flow of thought between the last two paragraphs. At present the last paragraph seems to me to spring from nowhere. Commented Jun 11, 2019 at 8:17
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    A good answer, but nitpicking this part: "The other points out that if Mueller had enough evidence to prosecute, he could have turned it over to the legislature for impeachment, which he hasn't done." His appointment mandated a report turned over to the AG, with no real mechanism to directly hand it over to Congress. Nevertheless, he has plainly stated, both in his report and in a press conference, that Congress is the correct venue for any further action.
    – Geobits
    Commented Jun 11, 2019 at 12:16

Your first statement is not quite accurate.

Legislators make laws, the executive executes laws and the judiciary judges laws.

It's a bit more nuanced than that. I would suggest:

The Judicial Branch has the responsibility to apply the laws to specific cases brought or submitted to them. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people.

The Executive Branch (includes the Department of Justice) investigates violations of law and submits those suspected of violations to the Judicial Branch for adjudication (judgement) and as appropriate punishment.

Other answers have delved into your secondary questions, and I would let them stand on their own merits. But to answer your title question, you need to understand the essential role of each branch.

  • This is a comment, not an answer. Commented Mar 15, 2021 at 14:58

District attorneys are not gods. Their actions are subject to judicial review, and indirectly, voter review by the electorate that voted for the party that appoints the DA. In some cases, DA's are elected directly by the people.

The judicial branch of the US government operates independently of the executive branch, and is beholden only to one entity: the US Constitution.

It is true that judges are nominated by the executive branch, and then approved by the legislative branch, which also operates independently of the executive branch.

And, within the legislative branch, there is the House with two year terms, and the Senate with six year terms, reflecting both the immediate sentiment of the voters, and the long term sentiment of the voters.

A president can issue executive orders, which carry the force of law. However, those executive orders are subject to review and dismissal by the judicial branch. Or, executive orders can be overridden by the legislative branch, if they have enough votes to override an almost certain executive veto.

Even the highest judicial position, a Supreme Court justice, can be impeached and removed by the legislative branch. The last time this happened, or nearly happened, was Abe Fortas, who resigned rather than face almost certain congressional impeachment over improper personal financial arrangements.

That's the basis of the US government: three independent branches, each having the ability to review and affect the actions of the others.

A district attorney that was obviously using their powers in an arbitrary or partisan manner will draw lots of negative attention. That will reflect badly on the political party that put the DA in their position, and that party will pay a price in the next election.

A recent example of a situation where a DA acted in a manner that may not have been consistent with what the available evidence strongly suggested was the Jussie Smollett case. DA Kim Foxx dropped all charges, despite a preponderance of evidence that Smollett may have faked a hate crime against himself.

Dropping charges doesn't mean exoneration. Those charges can be refiled if and when Foxx is dismissed from her position... which is likely to happen, as keeping her as DA will cost the current political party a lot of votes, as well as giving defendants another way to attack any prosecution that Foxx may undertake.

Since Foxx was a DA for Chicago, there are still federal charges pending against Smollett.

  • "Their actions are subject to judicial review" Decisions to prosecute and seek convictions must be approved by judges (and juries, eventually) as must requests for search and arrest warrants, but decisions to decline to prosecute, choices of charges, decisions regarding what plea deals will be offered, and decisions to investigate involving subpoenas (or not involving legal process) instead of warrants are not subject to judicial review. This is particularly notable in federal court where mandatory minimums reduce judicial discretion & grand juries rather than judges review probable cause.
    – ohwilleke
    Commented Jun 18, 2019 at 8:38

The Justice Department and the district attorney are under the president because the role of the executive branch is law enforcement. The judicial branch exists to ensure that a persons rights are not violated throughout the trial. The Supreme Court has set the precedent that they don't judge laws themselves in the abstract, they judge specific applications of laws and issue rulings that clarify, restrict, or remove laws that they feel the executive overstepped the reach of the law or the law itself was beyond the rights of the government granted in the constitution.

The district attorney, and assistants, are granted prosecutorial discretion, this is largely a practicality issue. Courts are a limited resource, using discretion to avoid trying cases with little or no evidence, or reducing changes in exchange for cooperating in another case to get a conviction. This can lead to abuse of over charging, not charging friends/family members, racial bias, etc. In cases where there would be clear conflict of interest or other ethical issues, the general solution is for a DA to delegate authority to a special counsel or an assistant district attorney. In a case where a district attorney is clearly not following the law or abusing their position, the President can remove them, or the legislature may impeach them.

Specifically in regard to a president not getting prosecuted by the district attorney there are a few reasons that that this wouldn't happen.

  • The DA is a subordinate to the President, they receive their power from the President, and therefore lack the power to prosecute the President.
  • The President can simply remove anyone from the Justice Department willing to prosecute them.
  • Congress is the body responsible for overseeing the president and impeaching them in cases where prosecution would make sense, therefore a DA taking action against a president would violate the constitution anyway.
  • Convicting the President wouldn't remove them from office, only a successful impeachment can do that, which would lead to an awkward state of preventing the President from being able to do their duties, but the 25th amendment may handle this.

So let's get the first clarification out of the way, here we are only talking about the Federal Branch of Government (States may do things differently, but as a general rule to state counterpart offices are similar enough).

You are correct in that the Executive "executes" the law, which is better said as implements and enforces the law (If a law says "Build a new Train line from one city to the other, the President will implement that train line through the appropriate agency, here the department of transportation). If a law says something is a crime, than it falls to the President to enforce that law at the federal level, through the Department of Justice (DOJ). The President does not make laws but can issue Executive Orders (EOs) which are basically notices as to how a current law should be implemented (when the law either gives the president broad decision power I.E. military policies or is silent on the specifics). Judges have narrow power to make laws through their role as interpreting the law as it exists. This method is called Case Law (or Precedence) and is one of the defining traits of Common Law systems around the world. The idea in common law is that if a court makes a ruling, for all cases with similar circumstances, that ruling must also be handed down (and for all lower level courts). In fact, there are many states in the U.S. where Murder is not a Statutory Law (i.e. law makers wrote it) because Case Law has made it illegal long before the legislature got around to writing the rules. If you read judicial opinions in the United States, this is why the judge will often refer to other cases, as the similarities and differences in the circumstances of the case may be influential to the decision.

In your question, DA refers to District Attorney, which is one of a number of titles for what is generally considered "Prosecuting Attorneys" and in criminal cases, represent the State against the Defendant who has been accused (The head of the DoJ is called the Attorney General and is the highest ranked Prosecutor in federal government). Normally in any Jurisdiction, who ever holds the highest rank of the prosecutor's office will be assisted by career prosecutors who will act in his or her stead during actual courtroom cases. Because these offices have budgets, Prosecutors have to pick their battles and cannot fight all crimes. Prosecutorial discretion allows the prosecutor a wide breadth of decisions when deciding which cases to pursue and which to let go. Obviously if I have a murder case and a speeding case, I would fight the former and let the other go because murder is a much more serious crime. Or they can choose to a plea bargain with either defendant so one will agree to admitting to lesser charges in exchange for a much more reduced sentence allowing the prosecutor to focus on the other and get the crime full. Both result in prison time and the plea bargain saves the Prosecution and the Judiciary time and money. Other times they may not charge the broken crime in protest of the law.

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