Lawfare involves the targeting of defendants based primarily on who they are rather than what they have done. It is a violation of the oldest prohibition that dates back to the book of Deuteronomy, in which God directs law enforcement officials not to “recognize faces” in administering justice. Hence the blindfold on the statue of justice.
But throughout the centuries, prosecutors have selectively prosecuted defendants based on their faces, names, political affiliations and ideologies. Infamously, the head of the notorious Soviet KGB told Stalin: “Show me the man, and I will find the crime.” Similarly, a South American dictator bragged: “For my friends, everything; for my enemies, the law.”
The great American jurist Robert Jackson described lawfare — without naming it as such — in the following way: “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” In the 1970s, I began to use the term “guerrilla warfare.” Now the word “lawfare” has become common parlance.
President Joe Biden has now accused his own Justice Department of employing lawfare against his son. This is what he said when issuing a pardon for his son Hunter: “Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently … 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.”
Biden is certainly correct in his observations: Hunter would never have been prosecuted if his name weren’t Biden. Yes, he did violate the law, but few if any defendants who do what Hunter did are criminally prosecuted, absent special circumstances.
As my friend and colleague Harvey Silverglate put it in his masterful book on the subject, Three Felonies A Day: “Every Soviet citizen committed at least three felonies a day, because the criminal statutes were written so broadly as to cover ordinary day-to-day activities. The Communist Party decided whom to prosecute from among the millions of possible criminals.”
Biden’s very human decision, arrived at reluctantly and in contradiction to an earlier commitment not to interfere, now gives President-Elect Donald Trump a green light — not that he needed it as a matter of constitutional authority — to pardon those defendants whom he believes were prosecuted selectively based on their political affiliations, loyalty to him or other invidious considerations.
Biden now is also obliged, by considerations of fairness, during his remaining weeks in office to review other applications for pardons and commutations that are comparable to the one he gave Hunter. It would be unfair for this to be a one-off that ends with his son.
The response to “lawfare” may thus now become “pardonfare.” The shoe is on the other foot. What’s good for the goose…
Tit-for-tat pardons may produce short-term justice, or at least equality, but there must be a more systematic way of minimizing the misuses of lawfare by all sides. So long as there is prosecutorial discretion, there will be abuses based on partisan, personal and other considerations.
There is a defense, recognized by law in certain limited situations, of “selective prosecution.” If a defendant is selected for prosecution from other similarly situated potential defendants, based on race, ethnicity, gender, sexual orientation or religion, he or she can seek dismissal. But it is rarely granted, even in those situations.
Nor does this limited defense extend to political, ideological, or partisan selectivity. The law can be changed to put the burden on prosecutors to justify selective prosecutions if the defendant can make a preliminary showing that other potential defendants whose alleged crimes are indistinguishable from his are not being prosecuted.
This will not be easy to show in practice but the law, in theory, should prohibit the kind of selective lawfare that was directed against Hunter Biden, Donald Trump and other controversial political figures.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of War Against the Jews: How to End Hamas Barbarism. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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