Advice from April 1940 for the House Judiciary Committee
An address by Attorney General (later Supreme Court justice) Robert H. Jackson to United States attorneys, April 1, 1940, drew my interest as I anticipate the deposition of attorney Mark Pomerantz, an anti-Trump zealot, before the House Judiciary Committee, this Friday, in connection with the indictment of former president Trump by Manhattan district attorney Alvin Bragg.
I sensed that Pomerantz, by his hostility to Mr. Trump, exemplified the comment, attributed to Lavrentiy Beria, Stalin's notorious secret police chief, who himself was executed: "show me the man, and I'll show you the crime." I then learned that Jackson, as attorney general, cautioned against such abuse of prosecutorial power.
But in locating the source of Jackson's caveat against abuse of prosecutorial power, and reading the text of his address, "The Federal Prosecutor," I realized that the man who was to become a Supreme Court justice had sage advice to be applied by opponents of the Biden administration's perverse handling of political trials.
What follows are excerpts of some length from this important statement, delivered eighty-three years ago, that I believe are relevant to the current prosecutorial climate. The first excerpt warns against personal animosity as the guiding force of prosecutions.
[I]f the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. 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 commissions of a crime and then looking for the man who has committed it, it is a question of picking the man and searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecution picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.
At this point, reading the text of Jackson's April 1, 1940 address, I realized that his words applied to the Jan. 6 defendants, as well as to the hostility toward Mr. Trump, held by Mark Pomerantz. Continuing the text of the Jackson address:
It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
In times of fear or hysteria political, racial, religious, social, and economic groups often for the best of motives, cry for the scalps of individuals because they do not like their views.
At this point Jackson took note of the use of the term "subversive" as the basis for abuse of prosecutorial power.
"Those who are in office are apt to regard as 'subversive' the activities of any of those who would bring about a change of administration." In today's climate, the epithet "subversive" arguably has been transformed into "right-wing extremist" — an epithet hurled by those desperate to retain political power.
Jackson then discussed the need for federal prosecutors to avoid becoming entangled in local politics. Perhaps today, Justice Jackson would counsel local prosecutors to avoid becoming entangled in federal matters, including prosecution of a former president who has a unique federal status pursuant to the Former Presidents Protection Act of 2012.
Justice Jackson concluded his address with this advice to his audience of United States attorneys:
[T]he qualities of a good prosecutor are as elusive and as impossible to define as those which make a gentleman, and those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
The aforesaid qualities for "good" prosecutors are absent in our era of "progressive" justice that is based on faction, not fairness, and is bereft of "human kindness," as shown by years of pre-trial detention for January defendants, also denied their Sixth Amendment right to a speedy trial. Indeed, the prosecutorial mindset of Biden/Garland stands as a refutation of Justice Jackson's call that federal prosecutors be guided by fair play and sportsmanship. (Is the very term "sportsmanship" in the vocabulary of Biden and Garland?)
Yet — may the House Judiciary Committee pay close attention to the wisdom of Justice Robert H. Jackson, along with his concept of what true justice is all about, and apply that wisdom and sense of justice as working paper these days, when the Department of Justice seems guided by the memory of the malevolent mindset of one L. Beria.
Photo credit: Public domain.