There’s a fine line separating prosecution and persecution, yet it’s one that holds the very legitimacy of the justice system within its bounds. When it blurs, the law changes from a tool of public safety into a means of depriving the public of its safety. Unfortunately, a new poll suggests that a majority of American voters now believe that’s exactly the transformation taking place at the U.S. Department of Justice (DOJ).
Specifically, that majority agrees with the notion that DOJ allows external politics to influence its decisions to prosecute federal crimes. Remarkably, this is true regardless of political affiliation, with a majority of Democrats (53%) joining an even greater share of Republicans (68%) in holding this view.
Though shocking, these results are not actually that surprising. There’s hardly a day that goes by that there’s not at least one news story describing a DOJ investigation into some politician or other political operative. Those connected to former President Trump and Hunter Biden alone have probably covered the salaries of whole media departments at this point. Likewise, there’s seemingly nonstop coverage of investigations (or lack thereof) related to hot-button political topics like judicial security and abortion, not to mention DOJ-led civil suits that have hobbled state officials and outside advocacy groups alike. Of course, Americans are starting to wonder whether politics is creeping into DOJ’s decisions.
Whether we’ve moved from a possible appearance of wrongdoing to actual politically motivated investigations is incredibly difficult to determine at this stage. After all, any investigation of a political figure will always look at least a little political, regardless of the merits. Similarly, it’s hard to say whether an uptick in political-seeming investigations would reflect an aggressive defense of our political system or its subversion.
Should that mistrustful majority of voters prove correct in their suspicions, however, the country will be in for an especially rocky ride. With more criminal penalties on the books than even the federal government can count, federal prosecutors can ensnare just about anyone if they look long enough. A truly politicized DOJ could wield its immense authority to suppress dissent or otherwise pull the strings of our democratic processes.
But even if prosecutors are picking their targets judiciously, merely the perception of political bias at DOJ is thoroughly damaging and its consequences extend well beyond those cases involving politicians. Americans will be understandably less likely to cooperate with an FBI, for example, that they consider corrupt, whatever the charges or investigations at issue. Likewise, federal prosecutors who push the bounds beyond reasonable prosecutions will quickly find jurors more skeptical of meritorious claims as well.
Thankfully, whether politicization is reality or only perception, many of the remedies are the same. These begin with trimming our overbroad criminal code, scrapping unnecessary offenses as well as ensuring there are appropriate safeguards in those that remain. In particular, providing that federal offenses include a mens rea requirement—a legal element requiring a defendant to have had a “guilty mind,” not merely have produced an undesirable outcome.
Such changes only nibble at the edges of DOJ’s power, but these limitations are not a bad thing. Public safety demands a capable prosecutorial apparatus and calls for drastic measures such as abolishing the FBI in response to missteps are no more reasonable than those to defund the police in local jurisdictions. Yet, precisely because DOJ must retain a deep well of authority, there must be greater accountability.
Within the executive branch, in addition to voluntary disclosures by DOJ, this path of transparency lays through a stronger, more independent DOJ Office of the Inspector General actively monitoring DOJ personnel. For its part, Congress must engage in more robust oversight and share as much as it safely can with the American public so that Americans can judge the state of federal law enforcement for themselves.
Recent statements by GOP leaders suggest they share their constituents’ doubts about motives at DOJ and are aiming for a full court press against the Biden DOJ should they seize either chamber of Congress. If this comes to pass, they should use this opportunity to highlight how these institutions can be turned against any American, not just the powerful. Only then will they secure the kind of lasting changes that can promote greater accountability and, ultimately, renewed trust in these institutions.