Although state officials in some jurisdictions possess this "power of superseder," they have used it sparingly; (23) in other jurisdictions, its use by independent officials is altogether unavailable.
Appointments of special prosecutors arise in these ways: requests by prosecutors, (111) court order, (112) and executive superseder. (113) This Part will explore each of these approaches as a means of curbing prosecutorial power.
Executive superseder power, either by a governor or an attorney general, provides the third means by which to remove a local prosecuting attorney from a case and appoint a special prosecutor.
(152) This provision has been interpreted as bestowing broad and unilateral powers of superseder on the attorney general when required by the public interest.
New York's system for appointing special prosecutors occasionally has led to litigation, with most challenges dealing with notice and reasonableness of superseder orders.
Despite their reluctance to exercise the power of superseder and its correspondingly rare use, governors have not entirely disregarded and neglected the mechanism.
When they have exercised the power of superseder, New York governors have not limited its use to traditional cases of disqualification, such as when the local prosecuting attorney possesses a direct personal interest.