Latest on the MAGA Republican Agenda: Intimidate Prosecutors and Politicize Prosecution

Posted in: Constitutional Law

Threats. Intimidation. Political reprisal. They are an important part of the MAGA Republican toolkit. Journalists, judges, election officials, and members of school boards who do not hew to the MAGA line all have been targeted.

Now local prosecutors are being added to the list.

Trump supporters have introduced bills in many red states to curb prosecutorial discretion when it is exercised in ways that do not conform to their tough-on-crime agenda. Such bills violate the separation of powers, threaten to politicize prosecution, and, in so doing, undermine the rule of law.

Attacks on prosecutors are also ramping up as the prospect of one or more criminal indictments of former President Trump increases.

At a January rally in Texas, Trump branded Black prosecutors from Georgia, New York, and Washington, DC, each of whom is investigating him “radical, vicious, and racist.”

He was referring to Fulton County (Ga.) District Attorney Fani Willis, New York Attorney General Letitia James, and Washington, D.C. Attorney General Karl Racine.

Echoing the infamous invitation that Trump issued for people to rally in Washington, DC, in the run-up to the January 6 insurrection, he used his Texas speech to urge his supporters to mount what he called “the biggest protests we have ever had in Washington, DC, in New York, in Atlanta and elsewhere” if he is indicted.

If indictments are handed down, more vicious, personal, threatening attacks on the prosecutors who bring them will surely be forthcoming.

Meantime, the House Select Subcommittee on the Weaponization of the Federal Government led by MAGA Republican Congressman Jim Jordan is taking aim at investigations and prosecutions brought by the Biden Justice Department. Jordan, whose bumbling and inept leadership of the committee has drawn the ire of even some of his usual MAGA allies, plans public hearings to show that the Biden Justice Department “is operating in… a political fashion and manner.”

Not to be outdone, last August Florida’s Republican Governor Ron DeSantis issued an executive order suspending Tampa-area State Attorney Andrew Warren. He did so after Warren flaunted the governor’s anti-woke agenda by announcing that he would not prosecute anyone for violating Florida’s recently enacted abortion ban.

Warren said the abortion law was “unconstitutional on its face” because of privacy rights embedded in the Florida Constitution.

But that didn’t matter to DeSantis, who said that Warren’s “incompetence and willful defiance of his duties as a state attorney” were shown when Warren declared “that he would not enforce criminal laws enacted by the Florida Legislature that prohibit providers from performing certain abortions to protect the lives of unborn children.”

DeSantis also justified the suspension by noting that Warren signed a “Joint Statement” with other elected prosecutors pledging “to use our discretion and not promote the criminalization of gender­affirming healthcare or transgender people.”

However, a story in The New York Times suggests that the real reasons for DeSantis’s suspension of Warren were purely political. The governor’s decision was “driven by a preconceived political narrative, bent on a predetermined outcome, content with a flimsy investigation and focused on maximizing media attention for Mr. DeSantis.”

In the wake of DeSantis’s action, Fox News host and MAGA propagandist, Tucker Carlson piled on and amplified the right-wing attack on prosecutors. He heaped praise on the Florida governor for standing up to Warren, who Carlson labeled a “George Soros prosecutor.”

Soros, he said, “has decided to destroy the American justice system and he’s doing it with prosecutors.” In racially coded language, reminiscent of the infamous Willie Horton ads, Carlson claimed that Soros-backed prosecutors “refuse to enforce the law against protected groups… That is the heart of their ideology. The result has been a lot of posturing, but even more murder victims”

Since then, Fox has broadcast a series of pieces criticizing Soros and the prosecutors allegedly implementing his progressive agenda.

Carrying forward this MAGA-inspired hysteria, another assault on a prosecutor occurred in November when the Republican-controlled Pennsylvania House voted to impeach Philadelphia’s liberal district attorney Larry Krasner. The Wall Street Journal reports that Republican legislators were upset that Krasner was “diverting nonviolent drug offenders to treatment instead of jail, sparing juveniles from being tried as adults and devoting resources to scrutinizing old cases in search of wrongful prosecutions and imprisonments.”

One of the impeachment articles alleged that Krasner had decided that crimes including sex work, theft, and drug-related offenses “would no longer be prosecuted and were therefore de facto legal.”

The latest shot in the escalating war on prosecutors was fired this month in Georgia when its House of Representatives passed a bill that would create oversight boards empowered to remove prosecutors. They could be disciplined for refusing to prosecute people who commit particular kinds of low-level offenses and committing what the legislation calls “willful misconduct.” Members of those boards would be appointed by the governor and other officeholders who are currently Republicans.

The Georgia legislation seems to be aimed at Fani Willis, who is high on Trump’s list of enemy prosecutors.

Congresswoman and staunch Trump ally Marjorie Taylor Greene drove this point home when she accused Willis of using taxpayer funds “for her personal political witch hunt against Pres Trump, but will NOT prosecute crime plaguing Atlanta!”

Reacting to the Georgia proposal, Willis noted that “For the hundreds of years we’ve had prosecutors,” oversight boards have been “unnecessary. But now all of a sudden this is a priority.”

And Florida’s Warren is quoted in The Washington Post about his view of the Georgia proposal, “We all want our elected officials to do their jobs well,” he said, “but giving one group of elected officials power over another does not promote accountability — it promotes partisan fealty.”

The Intercept reports that bills of the kind Georgia is considering have been introduced in 17 state legislatures. They target “reform-minded prosecutors.” And the report suggests that there is a racial dimension to this activity that is very much in line with the MAGA agenda.

“Lawmakers introducing bills to strip prosecutorial authority tend,” the Intercept notes, “to represent suburban white voters.” Their bills target prosecutors trying to do something about overcriminalization and racially disproportionate prosecutions in Black and minority communities.

It is important to note that prosecutorial discretion is not without its problems. It can be, and has been, abused.

But prosecutorial discretion has long played an indispensable part in a society governed by law.

When prosecutors press charges, or decline to do so, we want to ensure that they are not doing so to show their allegiance to a partisan agenda.

The exercise of prosecutorial discretion is influenced by many things, including, as a federal district court explained more than 60 years ago, “the likelihood of conviction . . . degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing, and the relative gravity of the offense.”

In all of this, as law professor Kenneth Melilli puts it, “The accomplishment of justice should not be the fortuitous residue of the process in which the prosecutor participates; it should be the guiding principle for every aspect of the prosecutorial function.”

And it has long been an accepted practice for prosecutors’ offices to develop internal sets of rules and policy priorities governing prosecutorial decision-making. What is new is not that they are now doing so.

MAGA Republicans just don’t like the decisions they are making and policies they are adopting. They hope to bring local prosecutors to heel by increasing legislative and political control over them.

In words that Supreme Court Justice Lewis Powell once used to describe previous efforts to curb prosecutorial independence, the MAGA strategy threatens to “prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.”

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