If the Harris-Walz ticket wins, Democrats may further distort the federal justice system – and state systems – beyond recognition. There is a real risk that partisan prosecutors and corrupt courts could be turned loose on political enemies, and lawfare made normal. That would be a tragedy for the American Republic.
As a former US Court of Appeals clerk, 9th Cir., New York litigator, and chief counsel for part of the House Oversight Committee, the rule of law – or the fair and impartial administration of laws in America – matters to me. It should be to all of us.
While we differ in our political views, priorities, and answers to social problems, even on the problems themselves, we need impartial justice or we lose trust in our Republic, which is structured to bring passions to a halt in the courts.
The concept of lawfare, or warfare through abuse of laws for politics, infecting non-partisan courts with partisanship, is the death knell for any republic.
So clear is this third-rail or danger zone that Democrat Franklin Delano Roosevelt’s Attorney General, who would disdain Garland, gave a riveting speech on the topic.
While FDR tried to pack – or politicize by expansion – the Supreme Court, his own Attorney General, Robert Jackson, later on the Supreme Court, was circumspect. His words echo still.
Before considering Jackson’s wisdom, understand we are on a precipice, Marxists at work trying to confuse, erode, and undermine the legitimacy of our constitutional processes, not least the judiciary, non-partisan prosecutors, and the High Court. From due process to our First Amendment, the stakes are high.
Understand, too, that citizen rights are only honored if the courts honor them since politics concentrates power at the expense of citizen rights. In practical terms, one citizen can be crushed.
Finally, our Constitution tries to carry forward fairness – block tyranny by a one-party government. It employs Montesquieu’s idea that power must be kept in equipoise or balance, with powerful branches checking other branches.
That is why we have a judiciary inoculated from politics, to keep political parts of government accountable. Sovereignty for a republic – the God-given right to self-rule – comes from the People, not from political leaders.
While we entrust the choice of leaders to our political process, generating legislative and executive branches accountable in elections, prosecutors and the judiciary are expected to avoid politics. If they do not, we are sunk.
One more point, not lost on FDR’s Attorney General. The government is “all-powerful,” and can criminalize anything. Charges impose costs, delays, and reputational damage. Accordingly, it must act with caution to preserve rights.
To do the opposite, pursuing lawfare and throttling political opponents, mocks our Constitution. Garland, Biden, Harris, Walz, and political prosecutors miss this.
Beyond destroying trust in the law’s evenhandedness, and fairness of government, lawfare advocates – whatever they think – endanger the future of the republic.
So, what did FDR’s AG, Robert Jackson, say? A lot worth hearing. Speaking to prosecutors, Jackson began: “… assembled in this room is one of the most powerful peace-time forces known to our country,” since “the prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.”
“He can have citizens investigated and…have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.”
“The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial…”
“If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.”
“While the prosecutor at his best is one of the most beneficent forces in our society when he acts from malice or other base motives, he is one of the worst.”
Thus, prosecutors have “this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself …”
Jackson reminds the room: “The federal prosecutor has now been prohibited from engaging in political activities …In times of fear or hysteria, political, racial, religious, social, and economic groups … cry for the scalps of individuals or groups because they do not like their views.” Prosecutors must never get entangled in politics.
The rest of Jackson’s speech is no less stirring, and – in modern context –disturbing. American history guarded against lawfare. We must also. If Harris-Walz gets in, then bar the door. Lawfare could become normal, ending impartial justice, and cracking the foundation of our republic.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
