Title : "In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules."
link : "In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules."
"In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules."
"In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.... We should want a fair system with clear rules that the people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors.... Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct. But that is what it means to have a government of laws and not of men.... If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad na[u]seum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute. This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.... Our job is to prosecute people who commit clear crimes. It is not to use vague criminal statutes to police the mores of politics or general conduct of the citizenry. Indulging fanciful legal theories may seem right in a particular case under particular circumstances with a particularly unsavory defendant—but the systemic cost to our justice system is too much to bear."Said Attorney General William Barr at the Hillsdale College Constitution Day event yesterday.
The NYT covered Barr's speech under the headline "Barr Defends Right to Intrude in Cases as He Sees Fit/The attorney general’s remarks scanned as a rebuke of career Justice Department lawyers who have questioned his level of involvement." This article portrays the speech as a response to accusations against Barr:
For months, Mr. Barr has been accused of politicizing the Justice Department, particularly by interfering in legal matters that benefit President Trump or his allies. In February, Mr. Barr overrode a sentencing recommendation for Mr. Trump’s longtime friend and ally Roger J. Stone Jr. with a more lenient one. And in May, he directed the Washington federal prosecutor’s office to withdraw the government’s case against Michael T. Flynn, the president’s first national security adviser, who twice pleaded guilty to lying to the F.B.I....The Washington Post article is "Barr accuses Justice Department of headhunting and meddling with politics." The article observes 2 points of hypocrisy. First, Trump seems to like the idea of prosecuting his political enemies:
But in his speech on Wednesday night, Mr. Barr said that it was well within his power as the attorney general to be the final arbiter in all cases before the Justice Department. While that assertion is technically true, past attorneys general have typically let the deputy attorney general run the day-to-day matters of the department and have even distanced themselves from politically fraught issues....
When he was a candidate in 2016, Trump’s rallies frequently featured chants of “lock her up” in reference to his Democratic opponent, Hillary Clinton. Since he became president, the list of officials Trump has called to go to jail has expanded to include former FBI director James B. Comey, former deputy FBI director Andrew McCabe and others at the FBI involved with investigating his campaign....And, second, Barr is said to have mentioned using the federal sedition law against the rioters (who are called "those committing violence amid the protest" by WaPo):
[Barr] specifically cited text having to do with opposing the government by force, one of the people [on a Justice Department conference call] said, speaking on the condition of anonymity to discuss internal considerations.WaPo signals to its readers not to go big on the drama over the mention of the sedition law: "In 2010, during the Obama administration, the Justice Department charged nine people with seditious conspiracy over an alleged plot to attack law enforcement."
What was that Obama era case? Speaking of politicized selectivity, it was against a Christian militia group. Here's the NYT article on the resolution of the case, "U.S. Judge in Michigan Acquits Militia Members of Sedition":
Members of a Christian militia accused of plotting an antigovernment uprising were acquitted on sedition and conspiracy charges on Tuesday by a federal judge who said prosecutors had failed to prove that the group had concrete plans to attack anyone.The problem wasn't the use of sedition law, but lack of evidence.
Judge Victoria A. Roberts of Federal District Court dismissed all charges against five members of the Hutaree militia, who the authorities claimed had plotted to kill a police officer and then ambush those who attended the funeral. She dismissed the most serious charges against the group’s founder, David Brian Stone Sr., and his son Joshua, but said they must remain on trial for some lesser weapons charges....
The defendants’ lawyers had maintained that while Mr. Stone and others in the group openly talked about their dislike of the police and other government officials, they were not planning to take any action and thus were protected by the First Amendment.The rioters today are, obviously, already taking action. And, of course, they openly speak of "their dislike of the police."
During opening statements, one lawyer said the Hutaree, which held training exercises in the woods near Adrian, about 70 miles southwest of Detroit, was essentially a “social club.”A few days after that article, the NYT ran a forum about the case and asked: "As the government deals with the re-emerging militia movement, what did it learn from the experiences of the 1990s, from the disastrous sieges in Ruby Ridge, Idaho, in 1992 and at the Branch Davidian compound in Waco, Tex., in 1993 to its handling of Oklahoma City bombing case?" Whatever the participants in this forum said relative to right-wing groups should apply in exactly the same way to today's left-wing groups. Anything else is plainly unethical.
“It shows how hard these cases are when you’re talking about groups engaged in political speech,” said Peter J. Henning, a law professor at Wayne State University and a former federal prosecutor. “This was a fairly disorganized group that talked big but didn’t seem to be doing much.” Professor Henning predicted that the Hutaree’s acquittal “will make the F.B.I. more hesitant to intervene early on when you’re talking about domestic threats.”
Here's the text of the federal sedition statute, 18 U.S. Code § 2384: "If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both."
That law was used successfully in the case against Sheik Omar Abdel Rahman — the blind sheik — in 1995, as the NYT reported in "THE TERROR CONSPIRACY: THE CHARGES/A Gamble Pays Off as the Prosecution Uses an Obscure 19th-Century Law":
At the outset of its seditious-conspiracy case against a blind Muslim cleric and 11 of his followers, the Government was thought to be taking quite a gamble in pinning its hopes on an obscure 19th-century law that makes it a crime to "conspire to overthrow, or put down, or destroy by force the Government of the United States."That makes me wonder, is Barr suggesting the use of the Sedition Act because it is a way to reach leaders of the movement? One hears so little about leaders.
Before yesterday, Federal prosecutors said, the last time seditious-conspiracy charges had been brought successfully was in 1987, against a group of Puerto Rican nationalists in Chicago. In two seditious-conspiracy cases in the late 1980's, one in Arkansas and one in Massachusetts, jurors acquitted all the defendants....
[I]n the case of Sheik Omar Abdel Rahman and his nine co-defendants (two others pleaded guilty shortly after the trial began), the prosecution may have calculated that it would help to cast their case in political terms, linking the defendants to Middle East terrorism.
The sedition law presented other advantages for the United States Attorney for the Southern District of New York, Mary Jo White, and her aides. It allowed them to charge defendants, like the Sheik, who did little more than talk about the plot with others. According to Federal law enforcement officials, until the defendants' indictment in August 1993, many prosecutors and F.B.I. officials said that the Sheik could not be charged unless he could be tied to a specific criminal act, but that Ms. White was determined to include him in the case and saw the seditious-conspiracy law as the way to do it....
The law has historically been used against groups with unpopular views. It was enacted after the Civil War, intended for use against Southerners who rejected the authority of the Federal Government, and amended in 1918, with Socialists and anarchists in mind.
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