Short-Circuiting the System to Play Elected Dictator

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Prosecutorial discretion.

Now there’s a nice phrase. 

Another phrase that’s almost synonymous with prosecutorial discretion is selective prosecution. One is considered a sometimes valid, if often abused, tool in the prosecutorial toolbox. The other heads off into the dark hinterlands of overt discrimination and flat-out corruption. 

From what I’ve seen, selective prosecution is closely aligned with those other destructors of justice: subornation of perjury and tampering with the evidence. 

Taken together, these little prosecutorial peccadilloes have the ability to overturn our justice system and make it into a tyranny.

Prosecutorial discretion, when mis-used for political demagoguery, can easily become a means of blocking the system and turning the whole legislative/judicial process into a sham. Prosecutorial discretion aligned with political demagoguery is so close to selective prosecution that it’s difficult to differentiate between them. 

My colleague, Leah Libresco, chimed in on the question of prosecutorial discretion yesterday with a fine post on the behavior of two elected officials. These two people are at the opposite ends of the ideological spectrum on what they are demagoguing about, but their misbehavior is based on an identical misapprehension of the powers of their office. 

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One is Kathleen Kane, the Attorney General of the State of Pennsylvania. Attorney General Kane announced a few weeks ago that she would not do the job the voters of the state of Pennsylvania elected her to do. She would not defend the state’s law defining marriage in court. Why? Because she doesn’t agree with the law. She seems to think that the law is immoral.

Her announcement was greeted by cheers from gay rights activists and uncomprehending silence from most of the citizens she betrayed. Attorneys General have gone about the business of doing their jobs for so long that most people just take it for granted that they will do them. In fact, a lot of people don’t really understand that when an attorney general flat-out refuses to do their job in this way, it is, and should be, an impeachable offense in most localities. 

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The other is a sheriff in Baton Rouge Louisiana who has been arresting homosexuals for violation of what sounds like the state’s anti-sodomy law. The Supreme Court overturned this law in 2003. I would guess that the sheriff didn’t agree with this decision. He may very well mirror Attorney General Kane by thinking that the decision is immoral.  

This debate about where personal morality ends and the responsibilities of office begin is not nebulous. It also does not apply to employment situations such as whether or not a pharmacist is required to fill prescriptions for RU486, a nurse should be required to assist in an elective abortion or a florist must sell flowers for a gay wedding. But it applies absolutely to elected officials. 

The difference — and it is an enormous difference — is between ordinary employment and elected office. An elected official who refuses to fulfill the requirements of their job or who deliberately oversteps the limits of their powers, is violating a public trust. They are violating the Constitutional privilege to hold office and execute the powers of the people in the name of the people.

Public office is not mere employment. It is the indispensable ingredient of the smooth functioning of a just and stable government. As such, it is incumbent on every and all elected officials to do their jobs to the best of their abilities and not the abuse the powers of their office. 

I react to both the situations described above, not, as Leah did, as a philosopher, but as an elected official who has been charged with fulfilling the duties of office for 18 years. I understand several key things that proponents of these two elected officials’ actions won’t accept.

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First, law enforcement, from top to bottom, is not law making. Law enforcement enforces laws. It does not write them. If Attorney General Kane wanted to work to overturn Pennsylvania’s marriage law, there were many options open to her, including running for election to a law-making position. Since she is an attorney, she might also have considered not running for office at all and filing cases against the law, maybe doing it pro bono. 

An Attorney General is not supposed to even take positions on the laws which they are sworn to defend and uphold. By that I mean that she should not be out making stump speeches against such laws — or for them, for that matter. Her job, and I keep saying this, but nobody seems to hear me, her job is to uphold and defend the laws of the State of Pennsylvania.

This is especially grave since, like all elected officials, she is the only person in her jurisdiction (in this case, the entire state of Pennsylvania) who holds the power of her office. If she refuses to do her job, the job can not be done by anyone else.

This is equally true of the sheriff in Baton Rouge. As an elected official, he is the only sheriff in that jurisdiction. No one else can do his job. Also, he is not a law maker or a law interpreter. He is a law enforcer. The decisions about what laws he should enforce are made by Congress, the legislature and the courts. 

Elected office is a privilege, not a sentence to be served. If any elected official finds that they cannot in good conscience perform the duties of their office, they have the free right to resign at any time.

Leah Libresco used a quote from a play and movie about my patron saint, St Thomas More, in her analysis. Thomas More was the Chancellor of England. Despite the enormity of this position, he resigned when his conscience would no longer allow him to discharge his duties as the King demanded. This is a good example for all of us who hold office. 

If Attorney General Kane can not in good conscience do the job that her office requires of her, she has the clear option of resigning. What she does not have is the option of refusing to do her job and thereby depriving the people of Pennsylvania of the legal representation they are Constitutionally entitled to. 

I am glad that Leah found this example giving the other side of this argument. Maybe it will help clarify what is at stake for those people who are so enthralled with their particular advocacy that they are willing to support overturning the very structure of government that gave them the right to advocate in the first place. 

From Unequally Yoked:

I’m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania.  When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy.  If a law is challenged, it seems like the appropriate state officials should be obligated to defend it.  Ducking it seems like a odd kind of de facto veto.  And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.

And now this is playing out in Pennsylvania.  The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so.  The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court.  Not short-circuiting the system over a conscience objection.

 

State Senator with Mind of Two-Year Old Wins Dumb-Off with Constituent

Brian nieves This guy clearly has senator-itis. 

Senator-itis is a deadly brain disease that leads to delusions of self-importance, rudeness and bizarre behavior. Coupled with the instantaneous communication of the internet and the “send” button on email software, it can cause homeric public stupidity.

Something happens to people’s poor little brains when they walk into capitol buildings and take their seats in legislative chambers. They start believing the flattery. They start thinking that they are as important as the office that they hold on a temporary basis.

In truth, elective office belongs to the people. The house seat I represent is not “mine.” It belongs to the people of District 89. They chose me to speak for them in state government and they allow me to exercise their bit of power in government in their name. But both the power and the position belong to them, not me.

I’m just the messenger.

Missouri State Senator Brian Nieves appears to have forgotten all this. He got an email from someone who didn’t like the newsletter he sends. The emailer told him to take them off the mailing list.

In my office, the reply would have been I apologize and of course we will remove your name from our list. Thank you for letting us know your preferences. Done and done.

But Senator Bozo replied with a hectoring insult, initiating an email exchange that sounds for all the world like a couple of bratty kids yelling barbs at each other across a playground.

Aside from wondering how this guy managed to get himself elected, I do find his veiled threat about being “threatened” more than a little over the top. It is against the law to threaten an elected official, but so far as I know, there is no law whatsoever against insulting them.

Here’s how it works: If you tell me that you’re going to harm me or my family if I don’t vote the way you want, then that’s a crime. And it should be. We can’t run a government if the people we elect are in fear for their lives because of controversial votes.

However, if you tell me I’m 20 kinds of fool who could easily be replaced with a snail in a business suit, that’s not a crime. It’s an insult. If you tell me that you’re going to take my newsletters and flush them down the drain and that if I ever show up at your house to ask for your vote, you’ll sic the dogs on me, that’s still not a threat. In fact, I’d probably think that was funny … before I x-ed you off my list.

But Bozo the Senator evidently thinks that when someone insults him or tells him to go soak his head, they’re threatening him. And he feels obliged to issue a veiled threat back. I find that disturbing.

All in all, I think this senator needs to consider a return to private life. He’s doesn’t appear to have the mental equipment to handle public office. As for the John Q Citizen who thinks his senator is a douchetard … what can I say? He lost the dumb-off, but not by much.

From Yahoo News:

When an unsolicited email arrives, most people hit delete and move on with their lives. Not Bart Cohn.

The Wildwood, Mo., resident received a newsletter from Brian Nieves, a Republican member of the Missouri Senate with whom Cohn does not see eye to eye on the issues. According to River Front Times, which originally reported the story, Cohn wrote a seven-word reply to Nieves’ newsletter. “Take me off your mailing list. Freak.”

And thus began a wackadoo exchange of insults between Cohn and Nieves, all of which were forwarded by Cohn to River Front Times.

After Cohn’s tersely worded response, Nieves issued a retort:

Who are you? Is there something wrong with you? Are you incapable of communicating in a way that common, decent people do?

Tell me this, how did you ever even get on MY Distribution list?

Cohn fired back:

Remove me from your list. I despise you.

Nieves then wrote this:

Tell me who you are and how you ever got on my list. I don’t take we’ll to some troll sneaking on to my distribution list.

Things get weird(er). From Cohn:

I don’t care what you take well to. Take me off your list. I don’t know how I got on your list. And I don’t sneak. I’ll tell you to your face I think you’re a freak. Now act like a big boy, senator, and remove me from your list as I’ve requested. And stop harassing me or I’ll make an issue of it.

Nieves apparently took issue with the word “issue.” He wrote:

Explain “issue”

Are you threatening an elected official? I’m sure your very Big & Bad & Tuff.

The ONE and ONLY way for you to have gotten on my list is by YOU having communicated with me via email. I guess your the type who wants to be able to throw something my way but not hear back?

You’ll be removed but be Very Careful to NEVER Threaten me! Also, don’t ever send anything to this email address again because every time you do, you automatically get put back on the distribution list. :-)

Think that’s the end? Nope. Cohn responded with more insults:

I didn’t threaten anyone, you tool. You are such a douchetard it’s not even funny. Now go do some work on your insane conspiracy theories that everyone laughs about behind your back. You’re a joke!

Read the rest here.


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