[Editor’s note: Make sure to read Daniel Greenfield’s masterpiece contributions in Jamie Glazov’s new book: Barack Obama’s True Legacy: How He Transformed America.]
When Barack Obama announced that he was unilaterally legalizing millions of illegal aliens while further opening the border, he described it as using “discretion about whom to prosecute”.
In the years since, pro-crime prosecutors have virtually dismantled the justice system in some jurisdictions by using their “discretion” not to prosecute thieves, drug dealers and violent criminals. Some prosecutors announced that they wouldn’t prosecute rioters and looters, others that they would stop prosecuting prostitution, public urination or thefts of under $1,000.
In the decade since Obama announced his exercise in prosecutorial discretion, the country has been overrun with criminals and illegal aliens who benefited from that “discretion”.
But prosecutorial discretion, like most leftist policies, works both ways.
Manhattan DA Alvin Bragg issued a ‘zero day’ memo on taking office that told prosecutors not to seek prison sentences for armed robbers. Bragg then labored to indict former President Trump while bypassing such niceties as the statute of limitations and the actual nature of the crime.
Such prosecutorial discretion has become routine in New York where Attorney General Letita James has championed criminal justice reform while targeting not only Trump, but the NRA. Bragg’s predecessor, DA Cyrus Vance, gave Jeffrey Epstein and Harvey Weinstein a pass. He announced that he wouldn’t charge former Mayor Bill de Blasio, but pursued Trump. After refusing to charge BLM rioters or prostitutes, he made a point of dragging a woman featured in a viral video into court because she had called the police during a dispute with a black man.
But it’s also become normal at the federal level.
Hillary Clinton and her aides mishandled classified information on a massive scale. The indictment of President Trump contrasts sharply with the treatment of Hillary, not to mention Biden who left classified documents lying around his garbage. The Trump team will argue selective prosecution, but the prosecution will argue that it can charge whom it pleases.
And to some degree this is true. Prosecutors have no obligation to charge Bob if they charge Jack. And Jack’s lawyers will rarely even bother bringing up Bob in court unless he’s white. Most of the major selective prosecution cases have relied on racial discrimination and so, like most civil rights laws, they leave out the political discrimination that has become the leading civil rights issue of our time. Prosecutors don’t target black people, they do target Republicans.
Prosecutorial discretion is meant to allow prosecutors to bring their strongest cases. Instead, beginning with Obama, it has created a two-tier justice system in which some forms of crimes, despite their destructive impact on society, get a pass while others that have minimal impact, are overcharged for purely political reasons. Even offenses that are very similar are treated very differently based on the political identity of the prosecutor and of the defendant.
And that has made for two sets of laws: written and unwritten laws.
Written laws matter very little. Whether a written law is enforced is subject to the discretion and therefore the political agenda of the prosecutor. That’s no longer a function of individual judgment, but political alignment. Billionaire leftists like George Soros and Netflix boss Reed Hastings have spent a fortune electing prosecutors that meet their needs. A movement of political prosecutors has vowed to enforce, or not enforce laws, for political reasons.
What matters are not the written laws, but the unwritten ones of politics. Justice takes a backseat to social justice. Criminals who clearly violate written laws are not charged by the same prosecutors who indict political opponents for process crimes or laboriously invent crimes.
“Show me the man and I will find the crime,” Andrey Vyshinsky, Stalin’s prosecutor, had reportedly boasted. Prone to speeches in which he declared that, “our entire country, from small to old, is waiting and demanding one thing: traitors and spies who sold our Motherland to the enemy, to be shot like filthy dogs” and “down with these abject animals, let’s put an end once and for all to these miserable hybrids of foxes and pigs, these stinking corpses, let’s exterminate the mad dogs of capitalism, who want to tear to pieces the flower of our new Soviet nation”, he dominated the show trials of the Great Terror with political posturing.
Justice depends on written laws. The Great Terror discarded, invented and casually misapplied laws. As did its counterparts in Nazi Germany. The unwritten law of the regime mattered more than the written law. And in America, the unwritten law has come to matter more than the written. The only law that truly matters is upholding the political agenda of those in power and histrionics and theatrics are used in place of a rigorous adherence to the written law.
Vyshinsky warned of an urgent threat to Marxism and the Soviet nation, his modern counterparts clamor that they are averting urgent threats to democracy on the one hand and systemic racism on the other. The written law has failed and they replace it with their unwritten laws to meet the manufactured emergencies that they have created for just this purpose.
The fundamental principle of the civil rights movement was that justice was no substitute for equal justice. Political prosecutorial discretion eliminates equal justice and replaces the law with an agenda. There can be no equality and no justice if prosecutors pick and choose whom to charge based on their politics. Even when their charges are grounded in the legality of individual cases, the systemic double standard eliminates the legality of those charges.
Only the consistent application of the law serves as an instrument of justice. The legally inconsistent, but politically consistent application of the law is simply tyranny under the color of law. It is no more justice than only handing out parking tickets to Democrats or Republicans. It would matter very little whether the tickets were individually justified because they would still be expressions of political repression, not an honest enforcement of parking regulations.
Nothing undermines respect for the law and trust in the legal system faster than when people observe that they have become corrupt tools for the repression of political opponents.
When Democrats freely defy subpoenas while Republicans are arrested, when mishandling classified information is only a crime for one party, when rioting isn’t a crime, but defending yourself is, there is no law, only a totalitarian regime selectively exploiting some laws.
The Left demands discretion for judges and prosecutors to set aside the law for social justice. And then, when they set aside the law for leftists and selectively throw the book at conservatives, also in their discretion, we become a nation of men, not laws.
A nation of laws, not men, does not allow prosecutors or judges to place their will above the law.
Prosecutors who refuse to enforce the law consistently should be removed, impeached or charged. There is no room for Vyshinskys or a two-tier justice system in our nation.
Until we have one set of laws for all, not two, there will be no justice in America.