This Essay examines prosecutorial discretion by building on DA Kimberly Foxx's discussion of who holds this power, while adding critical questions about what discretion actually is and when it crosses into misconduct. Argued here is that while prosecutors are entitled to significant discretionary authority grounded in law, this discretion is not unlimited—prosecutors are not above the law. The fundamental challenge lies in distinguishing between lawful prosecutorial discretion and unlawful prosecutorial misconduct, both of which are defined by law.

The essay explores the expansive powers granted to prosecutors, with particular emphasis on their authority to bring criminal charges—a power with a unique constitutional status that remains unchecked by many constitutional protections extended to defendants, particularly the grand jury requirement which has never been incorporated to apply to the states. While acknowledging that prosecutorial powers are extremely broad, the author's core argument is that law provides clear boundaries distinguishing legitimate discretionary power from misconduct. Recognizing these limits does not infringe on prosecutors' rightful authority; rather, it establishes the legal framework within which their discretion properly operates.

Government review of privileged material seized during law office searches or following the subpoena of an attorney to a grand jury, raise genuine concerns that implicate attorney-client privilege, work product doctrine, and ethical mandates of confidentiality. Currently, the review process may be through a Department of Justice taint or filter team, a court appointed special master, or a hybrid of these two approaches. When applied to high-profile cases such as Michael Avenatti, Rudy Giuliani, and Michael Cohen, one sees an inconsistent approach that is largely controlled by the government. Problems arise not only from this lack of uniformity, but also from certain inherent deficiencies in using a taint/filter team to review privileged material.

This Article offers a reconfiguration of this review process starting with the government’s initial decision to opt for a law office search as opposed to grand jury subpoenas duces tecum. It calls for an expansion of ethical mandates to increase the neutrality of this review process, as well as instituting procedures to ensure an independent review of privileged documents that does not compromise a defendant’s right to due process and right to effective assistance of counsel. Although fortifying the judicial role in reviewing privileged materials comes with certain costs, the aggregate benefits provide a more balanced judicial process.