Prosecutorial Indiscretion

What more can be said? The FBI raid on Trump’s Florida home was shocking and his supporters are incensed. But almost everyone, including Trump’s opponents, is uneasy. This is an unprecedented and dangerous weaponization of federal law enforcement powers against a political opponent of the party in power.

Some have defended the FBI’s actions as being court-authorized and really no different from what law enforcement does every day against criminal suspects. But these defenses do not address the colossally bad judgment behind the raid and the prior pattern of double standards and targeted persecution. While Trump is not above the law, he is not below it either. Did no one stand up and say, “Maybe this is too much, and we should think it through?” 

We know from earlier raids on Trump’s lawyers and advisors, FBI abuses of FISA warrants and wiretaps, and the ongoing disinformation campaign regarding “Russiagate,” that good judgment and restraint are in pretty short supply among the ruling party and its apparatchiks. General Mark Milley’s delusional draft resignation letter—which he declined to submit—shows they really do believe all their own B.S. about the sacredness of the system, their preferred policies, and all the rest.

The raid also demonstrates something in Trump’s favor: He is the only real enemy of the system. No one has been rejected and harried by the permanent government as aggressively as he. As he once said, “They are not after me. They’re after you.” His supporters appear to be rallying around him in the wake of this week’s events.

While this is a story about politicized law enforcement, America’s descent into Third World “winner-take-all” politics, and a delusional and self-worshiping managerial class, it is also a story about prosecutorial discretion. While laws are rigid and bound by their language, other considerations, like justice, likelihood of conviction, relative culpability, extenuating circumstances, and treating “like cases alike” all go under the category of prosecutorial discretion. 

At the state and local levels, this is one reason prosecutors are elected; they are supposed to demonstrate good judgment and sensible priorities in exercising prosecutorial discretion. In the federal government, this is the reason the attorney general and the Justice Department are part of the executive branch and subordinate to the elected president. 

Prosecutorial discretion inherently contains the potential for abuse. The wrong kind of prosecutorial discretion would simply decide certain laws do not matter, arrogating to itself the rightful place of the legislature. This is why Ron DeSantis recently suspended my local prosecutor, the Soros-funded leftist Andrew Warren. 

At the federal level, the decision to raid Trump’s home is ultimately one for which Attorney General Merrick Garland, FBI Director Christopher Wray, and Joe Biden are responsible. The FBI is part of the Department of Justice. Neither the FBI nor the Department of Justice is “independent,” in spite of certain of their power-hungry leadership’s pretensions to the contrary. The president is ultimately in charge. It is impossible to believe a decision of this magnitude was one made by ordinary field agents.

Regardless of the possible legal basis for this raid—and the basis appears completely pretextual and picayune arising from document retention regulations—the raid exhibits colossally bad judgment and malfeasance. This kind of “political question” is usually reserved for political branches. In other words, one would think the question of Trump’s criminality—or lack thereof—was already resolved by two failed impeachment proceedings. 

In matters like this, more is required than the mechanical application of law. Discretion must be characterized by sensitivity regarding intent and the gravity of the underlying alleged offense. This was the ostensible reason behind the FBI’s decision not to pursue charges against Hillary Clinton for her destruction of documents and maintenance of a private email server in 2016, for example. 

When a high-level elected politician is the subject of an investigation, other considerations also must play a part, including “a decent respect to the opinions of mankind” and regard for the “consent of the governed.” Concern for voters and the role of their judgment was part of the Senate’s basis for failing to convict both Bill Clinton and Trump for their supposedly impeachable conduct.

The seeming turn towards authoritarian abuse is rooted in two interrelated developments. The first is the whole concept of #TheResistance—the idea that the permanent bureaucracy somehow can act as a check against the elected president and rightfully did so against Trump. The concept was real poison. For the entirety of Trump’s presidency, career employees in the Department of Justice, Department of Defense, Homeland Security, and elsewhere resisted his orders and made a virtue of it. They denied the legitimacy of his election and never gave him the deference and respect normally due to a president. 

The second development is the January 6 protest and riot. This outburst scared the regime to the core. This is why, nearly two years later, hearings are going on, and people are getting years in prison for little more than trespassing. That the people would not accept a fishy election result and would show up and be angry and protest (and riot, admittedly) is, for the ruling class, a canary in the coal mine. 

Their authority is rooted in “business as usual” and requires that no one ask too many questions about election results, intelligence agency activity, how congressmen get so rich, and the like. For them, the sacred commitment to Our Democracy™ means the opposite, as they are particularly aggrieved at the people’s attempts to change the government by electing people like Donald Trump.

As I noted in an earlier essay, “For the Left, democracy loses all of its luster when it goes against progressivism. When the people engage the system by participating with passion, this is doubly alarming. Participating in politics, like voting, is supposed to be merely decoration, as meaningful as that childish sticker they give out proclaiming, ‘I Voted.’”

The raid on Trump’s home is a very dangerous precedent. Nothing stops a later indictment of him, other than perhaps the massive public backlash to the recent move. I expect that will lead to even greater anger, alarm, and activism among Trump’s supporters.

If the Republicans retake Congress, they should explore impeaching Garland, Wray, and possibly Biden, and abolishing the FBI, and reconstituting it under a respected, strong national figure. At the very least, cashiering all of its senior officials is necessary, as the FBI leadership has shown itself to be completely corrupted by partisanship and completely devoid of respect for the American people. 

All of these suggestions, however, depend upon a controversial assumption: that the system still works, that it will allow free and fair elections, and that we just need to win an election in order to get this done. This may not be possible. The rigged 2020 election, coupled with the recent maneuver against Trump, suggests the deep state is getting more brazen and desperate in its desire to control American politics.  

The harassment of Trump is an assault on the Constitution and the right of the people to choose their president. It is completely without parallel and the product of a demented, anti-democratic managerial system that is addicted to power and completely out of touch with at least half the country. 

We must be prepared for anything in the years ahead, and we must use every ounce of power at our disposal to punish and defang the wrongdoers responsible for this descent into Third World behavior.  

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About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

Photo: GIORGIO VIERA/AFP via Getty Images

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