The tyranny of prosecutors

Among the most chilling lines of the 20th century was when Josef Stalin’s chief of secret police Lavrenty Beria sought to assure his boss that literally anyone could be convicted and purged by boasting, “You show me the man, and I will find you the crime.” Today, few American prosecutors would make that same boast (at least out loud), but they certainly could. Just ask Donald Trump.

Is Trump a crook? Probably. Has he shown consistent disdain for norms throughout his professional and political career, including legal norms like honoring contracts, paying taxes, and truth in advertising? Absolutely.

But even if Trump were a model of personal probity—a Mitt Romney, say, or…yeah, a Mitt Romney—how confident could he be that a team of prosecutors, combing back through years or even decades of his professional and personal life, would find nothing they could charge him with? Indeed, how confident could any of us be?

Anyone who has ever paid taxes, run for office, started a business, purchased a firearm, driven a car, drank alcohol, done drugs, or gambled on a football game has either committed a crime outright or has become enmeshed in such a byzantine regulatory thicket that it would be absurd for them to assert with complete confidence that they had never committed any crime for which they could in theory be prosecuted. “Show me the man and I will find you the…misdemeanor speeding offense, expired registration, open‐container violation, illegal sports bet, improper tax deduction, unlawful campaign expenditure, unlicensed gun‐possession charge, or literally anything to do with marijuana (still illegal under federal law!).” The list goes on, and on, and on.

“Well sure, but I never paid off a former paramour,” you say, “or interfered with an election, or stole classified documents from my prior employer and then lied to investigators about it.” OK, fine. But that’s not really the point. Rather, the point is that if some prosecutor decided they wanted to upend your life, frustrate your ambitions, or just fulfill a personal vendetta against you by combing through every aspect of your life, scrutinizing every letter, email, and text message you ever sent, and interviewing every one of your friends, co‐workers, and former employees, looking for dirt—with the non‐too‐subtle message that they may have their own troubles if they fail to add to yours—you could find yourself in a world of trouble.

Of course, prosecutors aren’t supposed to go on personal witch hunts like this, but that’s not the point either. Instead, the point is that they can—whenever they want. And indeed, prosecutors in
Tennessee and Kentucky
have already threatened to do precisely that to Democratic politicians as payback for what they perceive to be an abuse of prosecutorial power against Donald Trump. So much for overwrought hypotheticals.

And something prosecutors know far better than you is just how successful they’ve been in hollowing out the myriad protections that the Founders so wisely—and indeed almost obsessively—built into the Bill of Rights to protect Americans from precisely that type of abuse. Let’s tick off just a few of the most important ones and see how they’ve been largely nullified by enterprising prosecutors and judges (a vastly disproportionate number of whom are
themselves former prosecutors
):

• The right to be secure against unreasonable searches and seizures: Largely negated both by local magistrates who will sign just about any warrant application that’s put in front of them (if at first you don’t succeed, try, try again with a different judge!) and a bevy of so‐​called “good faith” exceptions;

• The grand jury: Two words: 
  Ham. Sandwich
  .

• The right to counsel: Did you know prosecutors can use civil forfeiture to seize your assets for the specific purpose of impairing your ability to retain counsel and mount an effective defense? No? Well, they can. 
  And do.

• The right not to be tried twice for the same crime: This one seems suitably categorical, right? Wrong. 
  The Supreme Court says
   state and federal governments are “separate sovereigns,” so they can line up and take turns prosecuting you for the exact same conduct.

• The right against “excessive” bail: Utterly meaningless—judges routinely set bail at an amount they know defendants can’t afford precisely to ensure they remain locked up pending trial, even though there’s been no showing of flight risk or risk to public safety.

• The right against cruel and unusual punishment: Oh, you sweet summer child. One could literally write an encyclopedia about cruel and unusual punishments that are ubiquitous in American jails and prisons—starting with solitary confinement, which is both routine and correctly considered to be a form of torture outside the United States. (And don’t even google “prison medical care” unless you’ve got a really strong stomach.)

But even the few remaining shreds of these and other mutilated constitutional protections can be eliminated altogether if the defendant “chooses” to waive them—as more than 90% do in our system. Why on earth would anyone relinquish those hallowed and hard‐won protections—ostensibly the best in the world? Simple—for the same reason that people routinely confessed to being witches and warlocks in Salem, Massachusetts.
They’ve been coerced
. We call it plea bargaining—the Spanish Inquisition called it compurgation. Tomato, tomahto.

Should you be afraid that your local prosecutor—or literally any federal prosecutor—could easily do the same to you if they decided to? I suppose that depends. Have you done anything to put yourself on their radar screen?

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This article originally appeared in the Cato at Liberty blog and is reprinted with kind permission from the Cato Institute.