4 ms·

The problem is that criminal laws can't be applied, even in principle, without the exercise of prosecutorial discretion. Criminal laws are written broadly and l

The problem is that criminal laws can't be applied, even in principle, without the exercise of prosecutorial discretion. Criminal laws are written broadly and legislatures trust prosecutors to apply the laws to the subset of conduct that falls within the arguable letter of the law. That makes prosecution of political figures incredibly dangerous, because prosecution is inherently a discretionary act. Consider 18 USC 1343: > Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. A politically motivated prosecutor willing to stretch phrases like "property" and "false ... representations" could use 18 USC 1343 to turn minor infractions into federal felonies with the prospect of 20 years in prison. It's entirely up to the prosecutor to ensure that the atomic bomb of 18 USC 1343 is applied only to conduct that actually warrants such extreme charges. I'd note that, had Jim Comey been willing to push the law as far as the words would allow, he would've had a legal basis to prosecute Hillary Clinton for felonies relating to handling of classified information: https://www.fbi.gov/news/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system https://www.fbi.gov/news/press-releases/statement-by-fbi-dir.... Comey's statement in connection with the decision to recommend no charges is instructive: > Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

mmooss 2y ago
That is a problem, yet the law must still be enforced. There is no perfect solution but that isn't an argument for lawlessness, especially for powerful political leaders. Most importantly, whatever the prosecutor does they cannot convict someone. That must be done by a court, an independent agency (in the US).
- rayiner 2y ago
  > That is a problem, yet the law must still be enforced. Tellingly, you’re phrasing that in the passive voice, as if “the law” is “enforced” by higher beings sitting outside the political process. It is not. The enforcement of criminal laws is a political act, performed by political actors. And it is an inherently discretionary political act. Prosecutors actually have no obligation to enforce the law in every circumstance. > There is no perfect solution but that isn't an argument for lawlessness, especially for powerful political leaders. It’s not an argument for lawlessness, but rather an argument for viewing the political act of law enforcement as being secondary to the ultimate political act of electing leadership in any scenario where those two things could be seen as being in conflict. Put differently, you have to see prosecution and elections as political acts that both seek to vindicate the will of the people. After all, criminal prosecutions are brought on behalf of the People to vindicate the public interest in law and order, not private rights. So it’s perfectly legitimate to ask whether, under particular circumstances, it’s more important to enforce some criminal law—especially one unrelated to elections—or whether it’s more important to ensure the public can choose its leaders through elections.
  - JumpCrisscross 2y ago
    > as if “the law” is “enforced” by higher beings sitting outside the political process But this is what we get if embezzlement (and insurrection) go unpunished. Someone we look to outside and above the legal system to mete out retribution.
    - rayiner 2y ago
      No, you’ve inverted my point. The political system must be all encompassing. Everything must be within and subject to the political system. The legal system should not be all encompassing—it should stop short of serious conflict with the political system. Thus, in some extreme cases, the remedy for misconduct should be elections, or impeachment, not prosecutions.
      - JumpCrisscross 2y ago
JumpCrisscross 2y ago
> he would've had a legal basis to prosecute Hillary Clinton for felonies America is currently ann argument against popular democracy. Before we concede that electoral politics don’t work in a world with social media, maybe we can give increased prosecutorial discretion a chance. The alternative, after all, is just more authoritarian.
- s1artibartfast 2y ago
  Are you prepared to give several Trump appointed judges prosecutorial discretion over who can run in the midterms and 2028? The problem that prosecutorial discretion will have to overcome is selective enforcement, or the perception thereof. The right wing European media is claiming this was common practice across parties. Now I don't know the truth of it, but it is a hard thought to get out of ones head, and a hard negative to prove. wrt Le Pen, I find it noteworthy that evey English news article I have read avoids describing the actual crime [1], Which does seem more substantial than 99% of the Trump cases. https://www.lemonde.fr/en/les-decodeurs/article/2024/09/30/why-le-pen-and-26-other-far-right-party-members-are-standing-trial-in-paris-in-fake-eu-parliament-jobs-case_6727729_8.html?utm_source=chatgpt.com https://www.lemonde.fr/en/les-decodeurs/article/2024/09/30/w...
  - jonathanstrange 2y ago
    This works differently in France. Americans need to stop comparing everything to their own country, your country not as great a democracy as you might think.
    - s1artibartfast 2y ago
      I'm mostly talking about the US, and not claiming it is great. That said, in what ways do you think France is different?
      - jonathanstrange 2y ago
        Accounting politicians for crimes is not a problem as long as the judicial system is sufficiently independent from the executive. It is my impression that the French justice system is more independent and better protected against the executive branch than the US justice system, but I admit that I'm not an expert on comparing the two systems and could be wrong. It's really just a hunch aggregated from what I've heard over the years.
Boldened15 2y ago
That is all true but in this case she was sentenced to 2 years prison and 2 years house arrest, it's not exactly locking her up and throwing away the key for a minor infraction. Letting judges bar someone from running for office is silly though, if French law allows that they should reconsider; if someone is popular enough to win a national election despite a reasonable criminal conviction they are popular enough to threaten the civil order if they are barred from office.
- rayiner 2y ago
  I mean that, in general, criminal laws can be interpreted to take minor wrongdoings and turn them into serious crimes. I’m not saying that was the case with Le Pen. In fact, I think the conflict between law enforcement and politics in the Le Pen case is largely self-inflicted. There was no need to include the constraint on running for office in the punishment. And it seems like the wrongful conduct ended in 2017. Why did it take so long to work through to a verdict?
  - lucyjojo 2y ago
    It is a funny fact though that Le Pen herself was pushing for automatic ban on running for elections for the stuff she did.
aredox 2y ago
>Criminal laws are written broadly and legislatures trust prosecutors to apply the laws to the subset of conduct that falls within the arguable letter of the law. Not in France. You Brits and Americans have that weird Common Law system that relies on broad "laws" (more principles, really), judicial precedent and court decisions, whereas France and most of the world's judiciaries adopted Romans and Napoleon's Civil law system where the legislators write detailed legal codes that the courts then apply. https://en.wikipedia.org/wiki/Civil_law_(legal_system) https://en.wikipedia.org/wiki/Civil_law_(legal_system) Honestly, for me, Common Law is a medieval sh*tshow where nothing is really legally certain...
- ashoeafoot 2y ago
  Comon law proved to be more adaptable to different customs and cultures. Almost all of frances colonies sank into lawless despotism. Meanwhile many english colonies are or were vibeant lawruled democracies, even while beeing poor .
  - aredox 2y ago
    >Comon law proved to be more adaptable to different customs and cultures. ...Which is why civil law is the system of 150 countries /s
- rayiner 2y ago
  Is that true of criminal law? (Genuine question, I know zilch about European criminal law.) Does French law have the concept of prosecutorial discretion?
  - aredox 2y ago
    https://fr.wikipedia.org/wiki/Opportunit%C3%A9_des_poursuites_en_proc%C3%A9dure_p%C3%A9nale_fran%C3%A7aise https://fr.wikipedia.org/wiki/Opportunit%C3%A9_des_poursuite...
    - telotortium 2y ago

mmooss 2y ago

That is a problem, yet the law must still be enforced. There is no perfect solution but that isn't an argument for lawlessness, especially for powerful political leaders. Most importantly, whatever the prosecutor does they cannot convict someone. That must be done by a court, an independent agency (in the US).

rayiner 2y ago
> That is a problem, yet the law must still be enforced. Tellingly, you’re phrasing that in the passive voice, as if “the law” is “enforced” by higher beings sitting outside the political process. It is not. The enforcement of criminal laws is a political act, performed by political actors. And it is an inherently discretionary political act. Prosecutors actually have no obligation to enforce the law in every circumstance. > There is no perfect solution but that isn't an argument for lawlessness, especially for powerful political leaders. It’s not an argument for lawlessness, but rather an argument for viewing the political act of law enforcement as being secondary to the ultimate political act of electing leadership in any scenario where those two things could be seen as being in conflict. Put differently, you have to see prosecution and elections as political acts that both seek to vindicate the will of the people. After all, criminal prosecutions are brought on behalf of the People to vindicate the public interest in law and order, not private rights. So it’s perfectly legitimate to ask whether, under particular circumstances, it’s more important to enforce some criminal law—especially one unrelated to elections—or whether it’s more important to ensure the public can choose its leaders through elections.
- JumpCrisscross 2y ago
  > as if “the law” is “enforced” by higher beings sitting outside the political process But this is what we get if embezzlement (and insurrection) go unpunished. Someone we look to outside and above the legal system to mete out retribution.
  - rayiner 2y ago
    No, you’ve inverted my point. The political system must be all encompassing. Everything must be within and subject to the political system. The legal system should not be all encompassing—it should stop short of serious conflict with the political system. Thus, in some extreme cases, the remedy for misconduct should be elections, or impeachment, not prosecutions.
    - JumpCrisscross 2y ago

JumpCrisscross 2y ago

> he would've had a legal basis to prosecute Hillary Clinton for felonies America is currently ann argument against popular democracy. Before we concede that electoral politics don’t work in a world with social media, maybe we can give increased prosecutorial discretion a chance. The alternative, after all, is just more authoritarian.

s1artibartfast 2y ago
Are you prepared to give several Trump appointed judges prosecutorial discretion over who can run in the midterms and 2028? The problem that prosecutorial discretion will have to overcome is selective enforcement, or the perception thereof. The right wing European media is claiming this was common practice across parties. Now I don't know the truth of it, but it is a hard thought to get out of ones head, and a hard negative to prove. wrt Le Pen, I find it noteworthy that evey English news article I have read avoids describing the actual crime [1], Which does seem more substantial than 99% of the Trump cases. https://www.lemonde.fr/en/les-decodeurs/article/2024/09/30/why-le-pen-and-26-other-far-right-party-members-are-standing-trial-in-paris-in-fake-eu-parliament-jobs-case_6727729_8.html?utm_source=chatgpt.com https://www.lemonde.fr/en/les-decodeurs/article/2024/09/30/w...
- jonathanstrange 2y ago
  This works differently in France. Americans need to stop comparing everything to their own country, your country not as great a democracy as you might think.
  - s1artibartfast 2y ago
    I'm mostly talking about the US, and not claiming it is great. That said, in what ways do you think France is different?
    - jonathanstrange 2y ago
      Accounting politicians for crimes is not a problem as long as the judicial system is sufficiently independent from the executive. It is my impression that the French justice system is more independent and better protected against the executive branch than the US justice system, but I admit that I'm not an expert on comparing the two systems and could be wrong. It's really just a hunch aggregated from what I've heard over the years.

Boldened15 2y ago

That is all true but in this case she was sentenced to 2 years prison and 2 years house arrest, it's not exactly locking her up and throwing away the key for a minor infraction. Letting judges bar someone from running for office is silly though, if French law allows that they should reconsider; if someone is popular enough to win a national election despite a reasonable criminal conviction they are popular enough to threaten the civil order if they are barred from office.

rayiner 2y ago
I mean that, in general, criminal laws can be interpreted to take minor wrongdoings and turn them into serious crimes. I’m not saying that was the case with Le Pen. In fact, I think the conflict between law enforcement and politics in the Le Pen case is largely self-inflicted. There was no need to include the constraint on running for office in the punishment. And it seems like the wrongful conduct ended in 2017. Why did it take so long to work through to a verdict?
- lucyjojo 2y ago
  It is a funny fact though that Le Pen herself was pushing for automatic ban on running for elections for the stuff she did.

aredox 2y ago

>Criminal laws are written broadly and legislatures trust prosecutors to apply the laws to the subset of conduct that falls within the arguable letter of the law. Not in France. You Brits and Americans have that weird Common Law system that relies on broad "laws" (more principles, really), judicial precedent and court decisions, whereas France and most of the world's judiciaries adopted Romans and Napoleon's Civil law system where the legislators write detailed legal codes that the courts then apply. https://en.wikipedia.org/wiki/Civil_law_(legal_system) https://en.wikipedia.org/wiki/Civil_law_(legal_system) Honestly, for me, Common Law is a medieval sh*tshow where nothing is really legally certain...

ashoeafoot 2y ago
Comon law proved to be more adaptable to different customs and cultures. Almost all of frances colonies sank into lawless despotism. Meanwhile many english colonies are or were vibeant lawruled democracies, even while beeing poor .
- aredox 2y ago
  >Comon law proved to be more adaptable to different customs and cultures. ...Which is why civil law is the system of 150 countries /s
rayiner 2y ago
Is that true of criminal law? (Genuine question, I know zilch about European criminal law.) Does French law have the concept of prosecutorial discretion?
- aredox 2y ago
  https://fr.wikipedia.org/wiki/Opportunit%C3%A9_des_poursuites_en_proc%C3%A9dure_p%C3%A9nale_fran%C3%A7aise https://fr.wikipedia.org/wiki/Opportunit%C3%A9_des_poursuite...
  - telotortium 2y ago