4 ms·

Policies can inform judges decision which inform precedent so I don't think this is worthless

tptacek 4y ago
Orin Kerr is commenting about this on Twitter right now and says pretty clearly that the new policy doesn't create any rights in court; you can use it to try to persuade DOJ not to prosecute, but it's unlikely that you can use it as a defense once they do.
londons_explore 4y ago
Is this true? Is a valid defense in court "your honour, I'm afraid that while I have broken the law, the prosecution should have ignored it according to their own policies?"
- nicknow 4y ago
  No. The Principles of Federal Prosecution (Title 9 of the Justice Manual) make very clear you can't litigate whether a prosecutor is following DOJ's internal policies - that's between the Assistant US Attorney, the US Attorney, and the Attorney General.
  - tiahura 4y ago
    A judge may or may not care about DOJ's internal policies, and DOJ's disclaimer that's not binding on them isn't binding on the judge. Defendants certainly argue that a particular prosecution is selective enforcement and will refer to DOJ policies.
    - cmeacham98 4y ago
      Selective enforcement is legal though, no (as long as it isn't selecting based on a protected class such as race)?
      - lazide 4y ago
        ‘It Depends’. It can be a valid defense that the law is not actually prosecuted normally and you’re being singled out. That would require proving however that the prosecutors did actually know of and refuse to prosecute most others. ‘Making an example of someone’ that they happen to catch (and being terrible at catching most people) is still perfectly fine however. So good luck with that.
        tptacek 4y ago
        Ken White (Popehat, a former prosecutor) and Josh Barro had a podcast for several years about the legal travails of the Trump administration, a theme of which might have been "you are never going to win a defense based on selective prosecution, just put it out of your mind."
        cmeacham98 4y ago
        > It can be a valid defense that the law is not actually prosecuted normally and you’re being singled out. My understanding is that in the US "singling out" specific criminals is perfectly OK for the prosecution to do (well, legally speaking, I'm not saying it's ethical or won't get them in trouble with voters). (Again, given you aren't singling them out because of a protected class like race, sex, etc)
        lazide 4y ago
        Again, ‘it depends’. You’re generally correct, but ‘bills of attainders’ laws (aka targeting specific individuals) along with the ‘equal protection before the law’ clauses make it unconstitutional to target specific individuals instead of classes of behavior, and that is the general theory behind it not being ok to do true selective enforcement (aka Bob gets charged for something Joe does openly all the time). Like pointed out in a sibling thread though, essentially impossible to prove, let alone get anyone to care about, and useless as a defense unless someone is being stupidly blatant about it.
- xxpor 4y ago
  >"your honour, I'm afraid that while I have broken the law, the prosecution should have ignored it according to their own policies?" No, but I'm having a hard time finding a reference now :/ You may be able to argue malicious prosecution, in which that may be a piece of evidence. The bar for MP is quite high though.
  - dane-pgp 4y ago
    > You may be able to argue malicious prosecution Another far-fetched strategy would be to argue that, because of the government's inconsistency about how the law is applied, the law itself might be unconstitutionally vague.[0] This is not legal advice, though. [0] https://en.wikipedia.org/wiki/Vagueness_doctrine https://en.wikipedia.org/wiki/Vagueness_doctrine

Orin Kerr is commenting about this on Twitter right now and says pretty clearly that the new policy doesn't create any rights in court; you can use it to try to persuade DOJ not to prosecute, but it's unlikely that you can use it as a defense once they do.

londons_explore 4y ago

Is this true? Is a valid defense in court "your honour, I'm afraid that while I have broken the law, the prosecution should have ignored it according to their own policies?"

nicknow 4y ago
No. The Principles of Federal Prosecution (Title 9 of the Justice Manual) make very clear you can't litigate whether a prosecutor is following DOJ's internal policies - that's between the Assistant US Attorney, the US Attorney, and the Attorney General.
- tiahura 4y ago
  A judge may or may not care about DOJ's internal policies, and DOJ's disclaimer that's not binding on them isn't binding on the judge. Defendants certainly argue that a particular prosecution is selective enforcement and will refer to DOJ policies.
  - cmeacham98 4y ago
    Selective enforcement is legal though, no (as long as it isn't selecting based on a protected class such as race)?
    - lazide 4y ago
      ‘It Depends’. It can be a valid defense that the law is not actually prosecuted normally and you’re being singled out. That would require proving however that the prosecutors did actually know of and refuse to prosecute most others. ‘Making an example of someone’ that they happen to catch (and being terrible at catching most people) is still perfectly fine however. So good luck with that.
      - tptacek 4y ago
        Ken White (Popehat, a former prosecutor) and Josh Barro had a podcast for several years about the legal travails of the Trump administration, a theme of which might have been "you are never going to win a defense based on selective prosecution, just put it out of your mind."
      - cmeacham98 4y ago
        > It can be a valid defense that the law is not actually prosecuted normally and you’re being singled out. My understanding is that in the US "singling out" specific criminals is perfectly OK for the prosecution to do (well, legally speaking, I'm not saying it's ethical or won't get them in trouble with voters). (Again, given you aren't singling them out because of a protected class like race, sex, etc)
        lazide 4y ago
        Again, ‘it depends’. You’re generally correct, but ‘bills of attainders’ laws (aka targeting specific individuals) along with the ‘equal protection before the law’ clauses make it unconstitutional to target specific individuals instead of classes of behavior, and that is the general theory behind it not being ok to do true selective enforcement (aka Bob gets charged for something Joe does openly all the time). Like pointed out in a sibling thread though, essentially impossible to prove, let alone get anyone to care about, and useless as a defense unless someone is being stupidly blatant about it.
xxpor 4y ago
>"your honour, I'm afraid that while I have broken the law, the prosecution should have ignored it according to their own policies?" No, but I'm having a hard time finding a reference now :/ You may be able to argue malicious prosecution, in which that may be a piece of evidence. The bar for MP is quite high though.
- dane-pgp 4y ago
  > You may be able to argue malicious prosecution Another far-fetched strategy would be to argue that, because of the government's inconsistency about how the law is applied, the law itself might be unconstitutionally vague.[0] This is not legal advice, though. [0] https://en.wikipedia.org/wiki/Vagueness_doctrine https://en.wikipedia.org/wiki/Vagueness_doctrine