Plea bargains with defendants who are elected public officers can present issues of federalism and separation of powers when they require the public officer defendant to take action that affects his or her tenure in office. The same issues can also arise when the defendant is a candidate for elective office, or when plea negotiations call for withdrawal from candidacy or an undertaking by the defendant not to seek or hold public office in the future.

GENERAL RULE: Resignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved. Where the office involved is not one within the Legislative or Judicial Branches of the federal government, such negotiated terms may be also be enforced involuntarily against the will of the defendant by a sentencing judge pursuant to the Federal Probation Act. United States v. Tonry, 605 F.2d 144 (5th Cir. 1979).

However, when the position that is the subject of a negotiated resignation, withdrawal from candidacy, or an agreement to forbear occupying future office, is a position within the Legislative or the Judicial Branches of the federal government (i.e., Member of Congress, United States Senator or federal judge), the inclusion of required withdrawal, resignation or forbearance may raise questions involving the separation of powers doctrine when included in a plea agreement negotiated by employees of the Executive Branch of government.

Resignation, withdrawal or forbearance from holding offices in the Legislative or the Judicial branches of the federal government may appropriately be made the subject of plea negotiations, and offers of resignation, withdrawal or forbearance concerning such offices may be incorporated into plea agreements with incumbent Members of Congress and federal judges. However, resignation, withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the judge or Member of Congress involved because of the separation of powers doctrine. See Powell v. McCormack, 395 U.S. 846 (1969); United States v. Richmond, 550 F. Supp. 144 (E.D.N.Y. 1982).

To assure uniformity and fairness, all proposed plea agreements involving defendants who are Members of Congress, candidates for Congress, or federal judges shall be subject to prior approval by the Public Integrity Section of the Criminal Division.

The Public Integrity Section has substantial experience and expertise in the issues presented by taking pleas from federal public officials. Assistant United States Attorneys are encouraged to contact Public Integrity should questions arise concerning this issue.

[updated January 2020] [cited in JM 9-16.020]