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How Selective Prosecution Biases Elections Against The Right


As I’ve written before, the never-ending Russia investigation thwarts congressional inquiry into the U.S. Department of Justice’s (DOJ) own meddling in the 2016 election. But political use of prosecutorial authority is also becoming a vehicle to interfere with future elections in contravention of international standards for election fairness.

In countries like Egypt and Venezuela, working for the “wrong” political campaign could lead to jail, while working for the “right” political party comes with the perk of immunity. Are similar trends beginning to take root inside the United States?

Let’s start with this question: Have you heard about the Bill and Hillary Clinton ally prosecuted for laundering campaign contributions, or paying off women to make televised allegations against Donald Trump, or paying the spouse of a senior DOJ prosecutor to use the DOJ to help smear the Republican presidential candidate then leaking to the press about it before the election?

Me neither. But Paul Manafort, George Papadopoulos, and Michael Flynn have all had their lives destroyed after making the mistake of helping Trump during the campaign, while their counterparts who helped Hillary have nothing to fear. With enough investigating agents and prosecutors, something can be found on many Trump campaign workers to warrant prosecution. But the one-sided selection of these defendants sends an unmistakable message to anyone thinking about participating in a political campaign on the “wrong” side.

Just imagine receiving an invitation from the Trump 2020 campaign to help out. Would you be willing to invite FBI interviews, or special counsel confiscation of your emails and review of all your tax returns and loan applications for the last 10 years? How confident are you that a motivated prosecutor with access to everything wouldn’t find something in all of those documents?

Any potential campaign worker with the talent to secure alternate employment would be a fool to expose his family and reputation to the meat grinder of political prosecutions. Thus, win, lose, or draw, the one-sided prosecution of Republicans but not Democrats chills participation in the next election. It’s hard to win an election when everyone is afraid to help you.

Selective Prosecution Is a Hallmark of Trouble

It is internationally recognized that selectively prosecuting political opponents harms the fairness of elections. It’s on this and other bases that Human Rights Watch criticized the 2018 Egyptian Election. HRW also objected to Venezuela’s use of prosecution to intimidate political opponents. While there are many differences between the United States and these countries, of course, selective prosecution is definitely a hallmark of banana republics and should be eschewed by countries like the United States that pride themselves on the rule of law.

The nonprofit Democracy Web published an essay on essential principles for an election to be “free, fair, and regular” that further illustrates this principle. They write:

…equality requires the ability of political parties and candidates to register for elections without unreasonable requirements (such as paying special fees or having a minimum income); that they have balanced access to the media; that laws governing the financing of campaigns are the same for all candidates and do not give one candidate or party an unequal advantage; and that the electoral process is fair and not skewed toward a party or candidate. Overall, political freedoms of expression, conscience, association, and assembly must be protected so that candidates and parties can campaigns without hindrance and have the opportunity to convey their political messages and platforms to the voters.

Campaign finance laws also seem to only apply to Republicans. Cleta Mitchell’s recent article in National Review observes that the DOJ only seems interested in campaign finance violations the Trump campaign committed. In 1996, Democrats were caught red-handed receiving payments from the Chinese government, in clear violation of campaign finance campaign laws. Yet no special counsel was appointed. No candidate went to jail.

One almost wonders if being an elite liberal operates as a sort of diplomatic immunity in politics. Consider also the law requiring Americans who lobby for foreign interests to register with the government (under the Foreign Agent Registration Act). In theory, the law would apply equally to Democrat-aligned lobbyists. In reality, it’s yet another tool to pursue non-leftist political enemies.

Manafort’s defense team complained, “The United States government has only used that offense six times since 1966 and only resulted in one conviction.” As Maxwell Anderson noted, “A quick perusal of those charged with criminal FARA violations since 1966 reveals a troubling pattern of targeting high profile Republicans or their associates.”

Lobbying is either speech or “petitioning the government,” both of which the First Amendment protects. So it is particularly troubling that the law would only be used to attack one viewpoint over another.

Trap People Into Committing a Technical ‘Crime’

Another special counsel favorite tactic is to turn innocent political opponents into criminals by subjecting them to an FBI interview. Rep. Trey Gowdy once scoffed at objections to being interrogated by the FBI. If you have nothing to hide, an interview with an FBI agent places you in no danger, right?

Think again. In 2017, the DOJ demonstrated the power to turn a factual discrepancy in an interview of an innocent man into a felony conviction. Flynn not only made the mistake of helping Trump but also of opposing former FBI deputy director Andrew McCabe’s effort to railroad a discrimination complaint.

McCabe appears to have ordered Flynn’s interview for the sole purpose of catching Flynn in a lie about otherwise legal behavior that the FBI already had on tape. So yes, campaign workers working for the “wrong” campaign have every reason to worry about an FBI interview, even if they’ve done nothing wrong.

The Flynn case shows that unintentional misstatements can be used to support a felony conviction. McCabe, who made far more serious and intentional misstatements to federal investigators, is of course completely free from any criminal prosecution. The difference between the two cases is stark.

Flynn’s Case Is Part of a Pattern

Contrast Flynn’s treatment with the FBI interview of Clinton during her email investigation. In that case, the interview was not recorded or transcribed, while Flynn’s was. It would be pretty difficult to charge Clinton with making a false statement without showing exactly what she said in the interview. Did FBI Agent Peter Strzok forget to record Clinton by accident?

Likewise, when you read the Papadopoulos allocution for lying to the FBI, much of the conviction appears to hinge on competing conceptions of when exactly Papadopoulos did “join” the Trump campaign. If you think the word “join” means when Papadopoulos accepted an invitation to work for the Trump campaign, then perhaps he is a felon. If you think the word suggests the date he began actively participating in the campaign, he might be innocent.

More puzzling still, the mysterious professor to whom Papadopoulos spoke appears to be now corroborating the supposedly false version of the story Papadopoulos originally gave the FBI. Papadopoulos was merely an unpaid volunteer, and his case shows the high risk of volunteering for the “wrong” political campaign.

Prosecutorial Abuse Also Has Other Applications

Political abuse of prosecution can also take the form of refraining from prosecution. Recall one of the election fairness standards: “Overall, political freedoms of expression, conscience, association, and assembly must be protected.” Human Rights Watch documents how in places like Egypt, non-security forces carry out violence to suppress free speech, without fear of prosecution. Failing to prosecute thugs who suppress free speech is as much a threat to a democratic republic as selective prosecution of political opponents.

We are now seeing tolerated political violence in the United States. Consider the case The Daily Caller profiled, in which Antifa protester Eric Clanton grievously attacked seven victims with a bike lock. A bystander happened to record one of the attacks on video. If you didn’t know, Antifa is the neo-fascist mob that acts and dresses like fascist “blackshirts” from the 1930s.

The DOJ’s U.S. attorney in Washington D.C. dropped all charges against 38 defendants who violently rioted during the president’s inauguration.

Although the original video no longer appears to be available, Clanton’s bike lock makes a sickening thunk when it connects with the victim’s head as the victim attempts to give a pro-Trump interview. The video shows the infliction of a serious head injury, as the Trump supporter crumples and his head spurts blood. If Antifa is sincere about fighting fascism in America, it could start by looking at the fascists in the mirror, because this kind of political violence practically defines fascists.

In spite of initially being charged with several felony assaults, Clanton received a plea deal requiring one no-contest plea to a misdemeanor and three years of probation. Had the victim been a liberal instead of a Trump supporter, one can easily imagine the DOJ opening a civil rights case against the perpetrator. The DOJ’s deafening silence acts as a subtle wink and nod, further emboldening a mob veto of non-liberal speech.

While the DOJ ignores such violations, the liberal Ninth Circuit Court of Appeals is allowing a private civil rights lawsuit against police who failed to protect Trump supporters from the mob violence. Thank you, Ninth Circuit for defending free speech that the Jeff Sessions DOJ will not.

Similarly, the DOJ’s U.S. attorney in Washington D.C. dropped all charges against 38 defendants who violently rioted during the president’s inauguration. Again, when law enforcement, including prosecutors, fail to punish lawless hoodlums who disrupt the peaceful assembly or speech of their political opponents, it emboldens future use of these tactics and further degrades the environment necessary for free speech.

It is a mystery why Sessions and his deputy, Rod Rosenstein, are presiding over a rapid and possibly irreversible decline in the fairness of the U.S. election system and the safety necessary to conduct free speech. The left is angry that Trump won the election, and they’re using the special counsel, DOJ, and tolerance of Antifa to punish and deter their opponents.

Political prosecution and mob veto of speech is a hallmark of dysfunctional democracies like Iran and Russia. It has no place inside the United States.