The Corner

Mike Lee Grills AG Nominee about Prosecutorial Discretion

Utah senator Mike Lee interrogated attorney general nominee Loretta Lynch about her view of prosecutorial discretion during her Judiciary Committee confirmation hearing today. Lynch has said that she thinks the president’s executive action on immigration is “reasonable,” because the federal government may exercise prosecutorial discretion to set immigration-enforcement officers’ priorities. Lee argues that such discretion should be used only in limited circumstances, and not broadly as the president hopes. He attempted to drive his point home in questioning Lynch, poking holes in her more liberal view.

Specifically, the senator provided an example of how the same widespread discretion, applied elsewhere, could be disastrous. He stipulated that it makes sense for law enforcement officers to use their discretion in prioritizing bank robbers over drivers who exceed the speed limit, before asking rhetorically whether  providing permits to allow drivers to break the speed limit would be an improper use of such prosecutorial discretion. Lynch did not provide a direct yes or no answer, and Lee pressed on.

In his executive action on immigration, Obama not only ordered the deferral of deportations for many illegal immigrants, he also allowed those same illegal immigrants to obtain work permits. Lee continued with his hypothetical example, and asked if someone who is not responsible for making the law could provide permits allowing people to break it. 

“Without knowing more about it, I’m not able to respond to the hypothetical,” Lynch said. “It certainly doesn’t sound like something that a law enforcement officer would be engaged in.”    

While a law enforcement officer might not do such a thing, Lee’s question presumes the president already has.    

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