The Personal Website of Mark W. Dawson

Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

The Criminalization of Politics

It is an unfortunate fact that the intense partisanship of politics has spilled over to the justice system. By this, I mean the investigations, indictments, and trials of politicians with whom the prosecutor politically differs. There is no doubt that some politicians are corrupt and behave unlawfully. Those politicians who do so should be prosecuted for their possible crimes.

However, due to the multiplicity, complexity, convolutedness, contradictions, and often vagueness of laws, rules, and regulations, it is possible to prosecute anyone, at any time, for anything that they may do. The higher your socioeconomic status and/or your public profile, the more likely you are to be involved in more aspects of commerce, and the more likely you may run afoul of these laws, rules, and regulations. This is one of the reasons that we have prosecutorial discretion.

Prosecutorial discretion refers to the fact that under American law, government prosecuting attorneys have very extensive powers. A prosecuting attorney has the power relating to deciding what and who is to be investigated, choosing whether to bring criminal charges, deciding the nature of charges, plea bargaining, and sentence recommendation.

Although the prosecutor's power is very extensive, there are policies and procedures to guide the prosecutor for the purposes of assuring equality under the law and that justice prevails. Once an indictment is lodged with the court or an arrest occurs, a judge may also intervene and provide a check and balance on a prosecutor. In all cases, the accused is presumed innocent until found guilty, and that their Constitutional and Civil Liberties are upheld.

Law enforcement is also supposed to keep all investigatory and prosecutorial matters confidential until an indictment or arrest to preserve the integrity of the prosecution, as well as preventing possible harm to those persons involved in the investigation. Of course, in higher-profile cases, this confidentially often does not occur as we also have freedom of the press. But the investigative and prosecutorial team is required to maintain confidentiality. The prosecutorial purpose of an indictment or arrest is to prove the guilt of the accused beyond a reasonable doubt so that justice may prevail.

However, in recent decades, we have seen a significant increase in indictments of political figures. There is no doubt that many of these political figures have violated the law (as who has not due to the reasons explained in the 2nd paragraph of this article). But there seem to be many who are found not guilty at the end of their trial. And in many of these cases, we have seen the prosecutor be of one political party while the defendant is of the other political party, which raises suspicions of the political motivations of the prosecutor. These types of indictments often seem to come in an election year, again raising suspicions of the political motivations of the prosecutor. Suspicions are not a basis to determine the guilt or innocents of the defendant, nor the appropriateness of the indictment or the motivations of the prosecutor. However, there are serious consequences to all if the indictments are politically motivated—consequences to the defendant and consequences to society.

As to the defendant, they often incur serious negative economic consequences. It is very expensive to defend yourself, especially in the face of a prosecutor who often has much more monies to spend on the prosecution. Many defendants end up being impoverished or in debt because of the trial. The other issue is that their life may be ruined, as their political career may be shatter and their reputation in tatters. Even though the justice system requires that a defendant be innocent until proven guilty, the court of public opinion has no such requirement. Many people assume that if you are indicted, then if you are not guilty, you are at least a crooked politician (which could possibly be the truth).

Raymond James "Ray" Donovan is an American businessman and former Secretary of Labor under President Reagan. Mr. Donovan, who was the first sitting Cabinet officer to be indicted, and seven other construction executives were charged with fraud. He and all of the other defendants were acquitted, after which Donovan was famously quoted as asking, "Which office do I go to get my reputation back? ".

Today, I would not only ask where do I go to get my reputation back, but where do I go to get my finances back? A lifetime of savings and providing for your family, as well as your retirement funds, may disappear because of the political motivations of a prosecutor. As it is not possible to prove the motivations of the prosecutor, there is truly little legal recourse for the defendant to recover the monies spent on defending themselves.

This leads to the major societal issue of political prosecutions. What reasonable and intelligent person would enter politics if it could endanger both themselves and their families, on both financial and legal grounds, from a politically motivated prosecutor? Along with what I said in the sections' Attack the Messenger' and 'Criticism vs. Critique' of my article on "Dialog and Debate", we are provided disincentives for the best and brightest of society to enter the political arena. We are, therefore, curtailing political office holders to the politically passionate or careerist politicians. Some may enter politics as a sense of duty to serve their country, but I fear that those that do so are becoming less and less.

So, what can be done about this? I am afraid that there is not much legally that can be done. Our prosecutors are effectively shielded from lawsuits, and if you can file a lawsuit, it will be expensive to pursue, and in the absence of provable malice of the prosecutor, it is even more difficult to win a lawsuit. The only effective recourse is to elect or appoint prosecutors of the highest moral and ethical character who will put aside politics when utilizing their prosecutorial discretion.

Today, however, we often elect or appoint prosecutors based on their political affiliation and often passionate political affiliation. As there are no legal or political disincentives for political prosecutions, I foresee more and more politically motivated prosecutions. I am reminded of the warning of President John Adams at the start of our constitutional republic:

"Because we have no government armed with power capable of contending with human passions unbridled by morality and religion our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

We need to bring back more morality and religion, as well as much stronger ethics, into prosecutorial discretion.