America’s broken justice system of 300,000 federal crimes and the breakdown of a republic’s final failsafe: prosecutorial discretion
(Trump Versus the Hive, Part 29)
America’s broken justice system of 300,000 federal crimes and the breakdown of a republic’s final failsafe: prosecutorial discretion
The question America needs to answer now, is, “If Trump may have violated the law, why shouldn’t he be prosecuted?”
That answer is the understanding now missing in America. It is precisely that wisdom judges and the public need to preserve our democratic republic, peace, and security.
The difference between American freedom and a fascist dictatorship is not that the American people can vote. People in almost every country can vote.
What makes America different from dictatorships is that the candidate we intend to vote for is not in jail.
The Left’s current prosecutions are an escalation that seeks to undo this key, pivotal, irreplaceable aspect of our democratic republic. We cannot and must not open the Pandora’s Box of political prosecutions. They will either result in Democrats remaining in power and increasingly prosecuting Republicans leading to ever-deeper divides and civil war, such abuses of the system that it will lead to global catastrophic wars, or both.
Why don’t we step back and examine the purpose of law in the first place.
The law, and law enforcement, are imperfect things. The purpose of law is not to be correct in every single case. In fact, the law cannot always be correct. One judge and jury would find one way, and another, another way. For this reason alone, prosecuting Trump makes no sense. It’s throwing the president in jail based on the flip of a coin… times as many times as his political enemies can find prosecutors to bring charges, each time getting another flip, until they find him guilty.
Criminal law requires both a criminal act, and a wrongful mental state (Actus Reus and Mens Rea in Latin), so for example, of you take someone else’s identical black umbrella by mistake leaving a restaurant, you have not committed a theft if you believed it was yours.
(Obviously a bookkeeping error, if that, in 2017 that Trump didn’t know about could not have possible been “intended” by Trump to harm the 2016 election.)
The purpose of criminal law is the protection and functioning of society through crime prevention, deterrence, and removing from society those who are a threat. Laws must be so clear that a non-lawyer can understand what is legal and what is not from reading the plain language of the law “while running”, as Thomas Jefferson quipped. Otherwise, the law does not achieve its purpose, and puts people in jail for unforeseeable things and accidents - not the purpose of criminal law. That’s what civil law is for.
To understand prosecutorial discretion, let’s look at the prohibition against driving at an excessive speed “speeding” as an example. Most people drive in excess of the speed limit most of the time. Most of traffic usually flows in excess of the speed limit. Driving at the limit 100% of the time is impossible because your speed will fluctuate per traffic conditions. Driving under the limit can be dangerous sometimes, forcing faster drivers to swerve around you, creating a dangerous condition.
As far as enforcement, police cannot enforce every road all the time. That means most people who speed get away with it most of the time, some who drive faster may not be ticketed, and some who barely speed may receive tickets. It is inherently unfair, but law enforcement and courts try to maintain a balance that keeps roads relatively safe and most drivers in relative obeyance.
Police know this, and therefore usually have an unwritten policy of citing drivers who aren’t exceeding the speed limit by at least 10 miles per hour. That’s unwritten, but real-world prosecutorial policy.
Police officers don’t always ticket every person they catch speeding equally. Sometimes they are in a good mood, or feel some factor, circumstance, or excuse justifies letting the driver off with a warning. That’s prosecutorial discretion.
Sometimes, police do not ticket because it’s another police officer, a friend, family member, a very attractive member of the opposite sex, a judge, or firefighter, and they let them off with a warning to be courteous or maintain professional relationships. Sometimes it appears to be a wealthy person and the officer would rather ticket them than somebody who appears unable to pay. These judgments are sometimes outside permissible prosecutorial discretion, but the occasional instance does not have significant consequences against the public interest.
Of course, if the police officer gives tickets to drivers with Republican bumper stickers, and lets drivers with Democrat bumper stickers off with a warning, he would be abusing what should be fair and neutral administration of the law. If a police officer were more inclined to give speeding tickets to Republicans generally or a Republican politician he didn’t like the political speech of, that would obviously be unconstitutional.
The question is, how do we prove it with Trump.
But what is the actual law? If you drive one mile per hour over the speed limit, a police officer technically has the authority, if he or she wanted to, to pull you over, arrest you, and impound your vehicle. The U.S. Supreme Court said in Atwater vs. Lago Vista 532 U.S. 318, that a police officer can arrest anyone for any minor infraction, ie: not wearing a seatbelt, presumably book them, impound their car, and take them to jail, and leave them in jail until a hearing before a judge and request for release, thus, jail even if the alleged violation is so minor that it doesn’t allow for jailtime even if convicted.
Usually the officer just writes you a ticket and lets you go. But, it is within the officer’s “discretion” and powers to arrest you and impound your car, and put you in jail until a hearing before a judge who grants you bail until your hearing date for your traffic ticket. There is a huge different between common practice, and the full powers of law enforcement if they really wanted to throw the book at you with everything they had.
Police officers don’t do this because it is far more work for them, and is not reasonable. In practice, millions of traffic citations are issued on America’s roads and this never happens for driving one mile over the limit. Nor, does an officer devote his entire day to following one car around waiting for you to exceed the limit by one mile per hour. Ultimately, such a prosecution would not make the roads safer, and a parent or teacher or doctor or plumber would miss work and face extraordinary costs for doing what everyone does. Police officers and law enforcement are granted far more powers than they typically need, and are trusted by society to use them for the common good.
Remember John Adams’ quote, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other”. If law enforcement does not share these fundamental values of working to make the roads safer neutrally and in a way that is reasonable to all, the results would be harmful to the public interest.
Now let’s apply the same understanding to federal crimes. In the United States, we have more than 300,000 federal crimes on the books if you include all federal codes and regulations.[1] No human being, not even a lawyer or judge, could know them all.
We have such a complex web of laws in this country, that every American has committed and routinely commits felonies unknowingly, for example, the following possibly federal crimes:
- not recycling wood, glass and batteries properly can be a violation of the EPA’s Resource Conservation and Recover act,
- connecting to a wi-fi without permission, or violating a website’s terms and conditions which nobody reads can be a felony violation of the Computer Fraud and Abuse Act (CFAA)
- downloading a protected movie, book, or music off the internet or even singing a copyrighted song can be copyright infringement,
- same with sharing music movies or games,
- same with sharing a copyrighted social media post,
- not having a dog license,
- playing poker for money,
- Throwing in the trash mail that comes to your house addressed to the wrong person (you are supposed to write “return to sender”.)
- Filling out virtually any government form incorrectly can constitute perjury (5 years in prison) and if you mail or email it, also wire fraud or mail fraud (10 years in prison),
- Simply sending a text to a buddy saying they owe you $20 for a burger you paid for at last night’s dinner might violate the Fair Debt Collection Practices Act.
The list of everyday “crimes” is endless.
Of course, almost every American has filled out a form incorrectly and mailed it back at some point, yet is not prosecuted. Government agencies are not subpoenaing every document trail and business transaction ever engaged in for the average American.
But they are for Trump.
Nearly every American is arguably guilty of some unintentional federal crime. And could not live life otherwise. A book called “Three Felonies a Day” by Harvey Silverglate says the Average American commits three felonies a day just living normal life, the most law-abiding way they know how.[2]
If you are involved in business and fill out more forms, sign more documents, especially regulated documents, like engaging in real estate or financial transactions, the chances of you accidentally and unknowingly committing “crimes” is even higher. People who fill out many different government forms as part of their job and sign many things are even more likely to accidentally commit violations unknowingly. We all constantly agree to terms and conditions for every phone and software and app we use, and nobody could actually function in life if they read every word before clicking “I have read this and agree.”
And there are many vague laws. An exaggerated example just for illustration purposes would be if a law said, “Doing anything inappropriate is illegal, punishable by 5 years in prison.” With no definition of “inappropriate”, not only can it be abused, but a potential-violator cannot know whether anything he is doing is a crime. The purpose of law itself would not be upheld by the law, nor by prosecution.
Most Americans don’t see a problem with our strict legal system of 300,000 federal crimes, because government does not decide to prosecute most Americans for sound prosecutorial discretion based on the public interest and available resources, among other considerations. However, this is why increasing government programs and regulation and size is always increasing government power at the expense of freedom. This is a problem Trump sought to correct, including with his executive order “Protecting Americans from Overcriminalization Through Regulatory Reform”[3]
A prosecutor can also choose not to prosecute anyone who they believe has committed a crime, as San Francisco District Attorney Chesa Boudin has decided not to prosecute drug offenses, and thefts under $900.[4]
Most Americans unintentionally violate such technical laws but are never prosecuted. When the government prosecuted the gangster Al Capone for tax evasion, pretty much no American disagreed because the end justified the means.
We all know Trump is being prosecuted for things similar to what others routinely are not, we just don’t understand what to do about it. After all, how do you fix a nation with 300,000 federal laws in which the government can prosecute anyone they choose to investigate?
The Soviet police are credited with the phrase, “give me the man and I’ll give you a case against him.” Dictatorships can choose any member of the political opposition or outspoken voice for investigation, prosecution, and jail.
This inherent discretionary power to abuse any legal system for political ends was also expressed well by Peru's General Óscar Benavides, with his famous phrase, “For my friends, everything; for my enemies, the law.”
With this reality, the question of who is prosecuted is no longer who commits a crime, but rather, whom the government chooses to investigate. Thus, choosing to investigate someone is the near-equivalent of a conviction, depending on how much resources and how broad the investigation is. Simple sloppiness and lack of resources of low-income individuals can be labeled criminal because they do not have the teams of accountants and lawyers to dot every i and cross every t.
John Adams’ quote highlights this fundamental flaw in our legal system, and why prosecutorial discretion must avoid even the appearance of political motivation. It is far too easy to successfully bring both civil and criminal legal action for ulterior motives.
The Left has been trying to get Trump to testify under oath regarding any civil or investigative matter they can, starting with Mueller, because they know even a person who intends to be fully truthful and tries their best to be truthful can be convicted of perjury, or lying under oath.
The law is not a perfect thing. A Congressional fact-finding is much more effective at determining the truth of what happened, without the fate of the country in the hands of a few biased jurors.
Law is, in reality, a tool, with which people can do good or harm, depending on prosecutorial discretion. Law is so murky, than in many complex transactions, teams of Securities and Exchange Commission lawyers, Federal Trade Commission lawyers, and/or Internal Revenue Service lawyers, and the teams of lawyers on the other side of a business transaction, merger or tax structuring for instance, may all still be unable to understand and figure out what the law even is on an issue, or whether something would be illegal or not. That’s how murky. That’s why they have something called “no action” letters, when the teams of lawyers get together with the government’s teams of lawyers, and say, we are not sure what the law is here, but we agree that we will take “no [prosecutorial] action” if you structure the transaction such and such way.
In fact, the legal field is so murky, that sometimes, no matter what option a client/lawyer take from their available choices, ALL of them may be against the law. As a simple example, if you speed, it’s against the law, and if you make it to court late and miss your hearing, that’s also against the law. Many experts believe if Trump’s bookkeeper had classified the nondisclosure agreement payment to Stormy Daniels, that could also have been argued to be incorrect. Either way could have been incorrect, depending on which way the D.A. wanted to argue it.
With law being that vague, it makes utterly no sense to prosecute a presidential candidate under such vagueness. The prosecutor and judge and jury should have understood this, but they did not, or did not care.
The most fundamental symbol of our legal system, lady justice, represented by even scales and a blindfold to show that justice is blind and balanced, has failed. Ideology has replaced it, and they don’t care.
So what do we do?
[1] https://www.heritage.org/crime-and-justice/commentary/count-the-crimes-the-federal-law-books-then-cut-them
[2] https://mises.org/library/decriminalize-average-man
[3] https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-protecting-americans-overcriminalization-regulatory-reform/
[4] https://www.theatlantic.com/ideas/archive/2022/06/how-san-francisco-became-failed-city/661199/