When a Former Prosecutor Runs for President.

James D. Diamond, Visiting Lecturer in Law at Yale Law School.

Being a former Connecticut state prosecutor listening to Kamala Harris’s Democratic Convention acceptance speech, I was proud to hear her boast about her career as a former San Fransisco municipal criminal prosecutor. In fact, Harris has made her background as a former prosecutor an important credential in her presidential campaign. For Harris, it is a well-earned credential. 

Where the chief local governmental prosecutor is elected, which is the most common practice (Connecticut—where I was an Assistant State’s Attorney—is the rare exception), prosecutors running for office by necessity enter the political fray. This is truer in bigger jurisdictions than it is in small towns and counties across the United States that also elect their chief prosecutors.

Harris was an Assistant District Attorney in San Fransisco from 1990 to 1998, then after a few years in the City Attorney’s Office on the civil side, she ran and was elected as the District Attorney in 2003, serving from 2004 to 2011.  Being a trial prosecutor anywhere is not an easy job, and being a big city elected D.A. is far more challenging.

It has become commonplace for prosecutors to use their careers to become elevated to United States Attorneys (who are appointed) and elected state attorneys general, governors, and United States senators. And when they do, they tout their previous prosecutorial experience as a campaign credential. It is often accompanied by a declaration that they are “tough on crime.” It is unprecedented, however, for any former prosecutor, whether state, local, or federal, to be elected President of the United States. Occasionally they try. Before she ran for the United States Senate, Amy Klobuchar was the chief prosecutor in Hennepin County, Minnesota, the largest county in Minnesota. She ran for President in 2020 but suspended her campaign after a few early primaries and caucuses. Former United States Attorneys like Rudy Guiliani in 2008, and Chris Christie in 2016, ran unsuccessfully in the Republican presidential primaries.

Harris’s candidacy as a major party candidate for President who is a former local prosecutor is without any modern precedent. I can’t think of a single former local prosecutor to rise to become a major party candidate for President, with one lone exception occurring more than 80 years ago. Thomas Dewey was the elected Manhattan District Attorney in New York City from 1938 to 1942, having used his high profile as an Assistant United States Attorney (and then New York State special prosecutor) in the 1930s to springboard his D.A. candidacy. From the District Attorney’s Office, he ran successfully for New York State Governor. And while Governor, Dewey ran twice for President, running and losing to Harry Truman twice: 1944 and 1948.

Dewey had a formidable record as a prosecutor, where in New York in the 1930s and 1940s he successfully prosecuted several high-profile organized crime defendants. Dewey’s prosecutions against organized crime defendant Charles "Lucky" Luciano, for example, helped build Dewey’s national reputation. Truman, on the other hand, attacked Dewey’s prosecutorial record as being exaggerated and a record characterized more as self-promotion, a common campaign response to the assertions of prosecutors turned political candidates.  

Former prosecutors who run for office and become politicians sometimes tout their prosecutorial career statistics in terms of wins and losses, like heavyweight boxers or major league baseball pitchers.  Rolling Stone magazine said South Carolina Congressman Trey Goudy “never lost a single trial in almost 20 years in court.” I am skeptical of claims like that, and Republicans do it just as often as do Democrats. Counting wins and losses in the criminal courtroom is a fool’s errand. How do you count convictions on only lesser-included offenses? How do you count convictions that occur in the retrial after a hung jury? Do you count them twice? In which column do you put the conviction reversed on appeal? Did you make decisions on which cases to bring to trial versus resolve with a plea with your conviction statistics in mind? The spectacle is unseemly; the job of a prosecutor is not to win. 

The spotlight on Kamala Harris’s record as a prosecutor, which no doubt is already occurring, will reveal what is true about any prosecutor: running on a prosecutor’s career record is a mixed blessing and not a record easily translated into political rhetoric. The record will reveal both satisfied and dissatisfied victims, sentences criticized as too harsh or not harsh enough, criticism of crimes, defendants and cases pursued as well as those not pursued. It will reveal the complexity of having to make decisions about how to treat law enforcement when they exercise undue force, and, yes, lethal force. Harris’s record will be assessed about how, as a chief prosecutor, she treated racial and ethnic minorities and other often marginalized communities. 

The career of a prosecuting attorney who handled a long list of complicated cases that took many twists and turns is not one that can be summarized in campaign soundbites.  It isn’t black and white.  I often say of my career in criminal law, “I lived in a world of grey.” Turning grey into either red or into blue is difficult.

---

James D. Diamond is a Visiting Lecturer in Law at Yale Law School and Professor of Practice at the University of Arizona James E. Rogers College of Law. Before entering academia, he practiced criminal law in Connecticut for 25 years as both a prosecutor and defense attorney and is certified by the National Board of Trial Advocacy as a criminal trial specialist.