Neither President-elect Donald Trump nor President Joe Biden seems too confident in the United States Department of Justice.
Trump disposed of Attorney General Jeff Sessions like last week’s leftovers and called Attorney General Bill Barr a “RINO who couldn’t get the job done.”
Biden thought a pardon was in order because Attorney General Merrick Garland’s DOJ didn’t give Hunter Biden a fair shake.
The damndest lies are the ones we tell ourselves. Underneath that blindfold, Lady Justice could always see.
In his nominating speech for Garland, Biden employed the popular image. “Our president is not above the law. Justice serves the people. It doesn’t protect the powerful,” he said. “Justice is blind.”It isn’t. In truth, it never was.
As an attorney, I’ve encountered countless personifications of justice. In almost every one of them, she’s blindfolded and holding a scale. You know who doesn’t need a blindfold? A blind person.
Politicians like the justice system when it works for them
Law enforcement is an unmistakably human exercise. Every governmental authority in America acknowledges the concept of “prosecutorial discretion.” We teach it regularly in criminal law classes. Justice cannot be both truly blind and make decisions about which cases to advance.
So what’s with the blindfold? Why should we even try to be objective about law enforcement? When a president wins an election, what’s wrong with allowing him to direct and decline prosecutions on a whim?
American justice must not be the plaything of the powerful, affluent, and connected. We attempt to elect, hire, appoint, and confirm men and women of high character across the entire justice system. Those officials and their teams hopefully ensure that our duly enacted laws are enforced as free from personal and political biases as is humanly possible.
That’s the standard. In any society that hopes to function and endure, it must be. Otherwise, the sweeping power of the law becomes a dangerous sword instead of a shield for our communities.
In appointing Garland, Biden offered soaring aspirational rhetoric. “More than anything, we need to restore the honor, the integrity, the independence of [the] Department of Justice in this nation that has been so badly damaged,” he said.
Opinion:‘Emperor’ Biden pardons son Hunter and undermines an independent justice system
When it mattered to his immediate family, the president’s tune ultimately changed. “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son – and that is wrong,” he said in a White House statement justifying his sweeping pardon.
The legal system did not fail in the cases of Trump and Biden – politics intervened
Biden’s political hypocrisy is far from shocking. My former Senate Judiciary Committee colleague, Gregg Nunziata, put it well. “I have always had a soft spot for Biden,” Nunziata posted on X. “But it’s mostly because he’s a wink atcha while he’s lying (you know it, he knows you know it) standard issue pol. The pardon of his son is totally expected and it’s very strange that any of you didn’t see it coming.”
Once we move past the feigned shock that our politicians aren’t the moral stalwarts we project them to be, we’re still left to contend with whether or not we can trust federal law enforcement and, specifically, the Department of Justice.Before we resort to vigilante justice or elaborate conspiracies, consider that our current federal justice system operates in a relatively fair manner in spite of our politicians telling us otherwise. The prosecutions against Trump and the cases against Hunter Biden are actually good examples.
The cases against Trump have been dispensed with in a number of different holdings. He’s not in prison. In fact, he’s going to be president again. Democrats may not like the result, but where did the justice system actually fail?
Hunter Biden’s cases were in the middle of the legal process, and the gun charges in particular were ripe for a constitutional challenge. The layers of review in the legal process were working. His father simply used his presidential prerogative to take the process off the table. Again, nothing about the system failed.
Reforming the justice system starts by repealing unnecessary criminal laws
Maybe it’s the prosecutors themselves who can’t be trusted? Our criminal justice system is and will always be subject to prosecutors who make charging decisions for the wrong reasons.
We have juries and judges to decide the cases, and layers of independent judges to review those decisions. Those are all safeguards against overzealous prosecutors.Prosecutors can indeed “charge a ham sandwich,” but convicting that sandwich and sustaining a conviction through appeals are other matters entirely.
I’m not familiar with another legal system which has afforded a higher measure of justice and simultaneously adapted to an evolving society as well as ours.
The United States does have an overcriminalization problem that receives little attention. Our justice system has procedural safeguards, but we’re putting too many people in legal jeopardy without considering the cost on our society.
A 2023 study by the Mercatus Center at George Washington University provided staggering information about the scope of federal criminal law:
“Today, 1,510 sections of the US Code create crimes. That number has steadily increased, growing by about 36 percent since 1994, when the total was 1,111. That’s an overall growth rate of 1.27 percent per year.”
Criminal laws that don’t clearly involve either an enumerated federal power in the Constitution or directly impact interstate commerce should be left to the states. We’ve given far too much discretion to prosecutors whose jobs aren’t accountable to the communities where they live.
If we want to restore the reputation of the Department of Justice, refocus its mission. The Attorney General should make recommendations to Congress for repealing antiquated laws, culling laws that duplicate state law, and removing federal edicts which are infrequently or inconsistently charged.
Take off the partisan blinders for a moment. Trump and Biden both uphold the rule of law and independence of the legal system until it isn’t convenient for them. We shouldn’t be shocked. Americans must protect our justice system, ensure men and women of character run it, and keep it as close to home as possible.
Lady Justice isn’t blind, but she can be fair.
USA TODAY Network Tennessee Columnist Cameron Smith is a Memphis-born, Brentwood-raised recovering political attorney who worked for conservative Republicans. He and his wife Justine are raising three boys in Nolensville, Tenn. Direct outrage or agreement to smith.david.cameron@gmail.com or @DCameronSmith on X, formerly known as Twitter. Agree or disagree? Send a letter to the editor to letters@tennessean.com.
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