It’s a problem.
The ideal of justice is a blindfolded woman poised and still and holding slowly balancing scales. At the Department of Justice over the last several years, the practice of justice is more like an inflatable flailing tube man.
In the lead-up to the 2016 election, everyone thought that federal prosecutors would decide whether to charge Hillary Clinton based on whether she knowingly violated a law that bars mishandling of classified material. It turned out that then-FBI Director James Comey would decide on the basis of what he thought was “reasonable.” After initially letting Clinton off, the tube man flailed right and Comey, breaking procedure against commenting on a pending investigation, announced that the Clinton probe was on again.
The Justice Department only got worse from there. Comey told the country that one reason not to charge Clinton was that the government had never before charged someone for conduct similar to hers. Yet after Comey, the Department went on to spend years investigating Donald Trump, not only for conduct never before charged, but for crimes no one even knew were crimes—including rude tweets. A dusty old law chiefly prohibiting cheating the federal government out of money would be stapled to Trump’s tweets and taped to an obstruction-of-justice charge and then the president was going to be marched off to prison for conspiracy to steal an election—or so the Department led the country’s credulous Left to believe for years.
Gone are the days of Comey’s somewhat evenhanded blundering. The flailing man’s hands are now in an unmistakable search for the necks of its political opponents. Consider the unruly Capitol protest following the 2020 election. For the protesters, the Department has dusted off the charge of “seditious conspiracy.”
The last time the department pursued seditious conspiracy charges, in 2010, it went after a group of Christian nationalists. The charges were thrown out of court. The last time the department made the charge stick was about 30 years ago—against Islamic terrorists who plotted to blow up the FBI and United Nations headquarters. In that case, seditious conspiracy was icing atop an already well-baked cake of indisputable crime.
But for the Capitol protesters, the charge is the essential means by which the government hopes to turn a protest into Pearl Harbor. Without seditious conspiracy, all the department can serve its political masters for dessert are uncoordinated offenses against the public peace, mostly misdemeanors like trespass, in a protest otherwise well within the guarantee of the First Amendment.
Offenses against the public peace hardly moved Justice Department officials when leftists tormented hundreds of cities and towns across America in 2020. They killed dozens, assaulted thousands of policemen, and caused billions in damages. For them, the Justice Department took a break from its legal MacGyverism. Although groups of Leftists organizing online sought “to prevent, hinder, or delay the execution of . . . law[s] of the United States,” nonefaced charges for seditious conspiracy—even after attacking federal courthouses, ICE facilities, and even the White House itself.
For the worst of the leftist rioters, federal prosecutors played the role of defense lawyers. They pleaded with a federal judge to go easy on Montez Terriel Lee, Jr., who burned a man to death in a Minnesota business he set on fire because—and this is a quote from the government’s actual brief—Lee, a five-time convict, “credibly state[ed] that he was in the streets to protest unlawful police violence against black men, and there is no basis to disbelieve” him. The brief even urged the judge to see that “a riot is the language of the unheard,” profanely quoting the revered apostle of nonviolence, Martin Luther King, Jr.
For Montez Lee, the tube man flailed so far left it became a windsock in a gale and snapped.
Federal sentencing guidelines called for Lee to get 20 years in prison. The government wanted him to get no more than 12. For Guy Wesley Reffitt, a Capitol protester who had no serious criminal past, hurt no one, and never even entered the Capitol building, guidelines call for about 10 years. The Department wants to stick him with 15.
For Reffitt, in the government’s view, a riot is not the “language of the unheard” but an “attack on our democracy”—by which prosecutors mean Lee’s democracy and not Reffitt’s. In the democracy the Justice Department cares to protect, whether Reffitt sincerely believed that he was the one defending American democracy from an unlawful attack isn’t worth considering because Reffitt backed the wrong guy—and nothing is worse than that. Not even murder.
Since President Trump’s election, the animating principle of the Justice Department has boiled down to one rule: “get him.” Reffitt’s is just another body the department plans to climb over to reach Trump—whom it wants to charge as the ringleader of a popular paroxysm that it helped to stoke by its own corruption but which it tries to dress up as the brainchild of the one man it most hates. And Lee, the Minnesota rioter, is just another soldier granted pardon for his service in the Left’s anti-Trump politics.
The Justice Department is unlikely ever to reform itself. It is fast racking up taxpayer bills approaching $100 million going after Trump and his supporters while spending but pennies to put leftist rioters in jail. Its problem is its people. Federal prosecutors such as Jeffrey S. Nestler in Reffitt’s case and Thomas Calhoun-Lopez in Lee’s are model, longstanding Justice Department employees. That’s the problem.
The task of reforming the Justice Department will fall to a Republican Party doing its voters’ will—and perhaps also to a reelected President Trump himself. For no matter how brazen the department’s corruptions become, there will never be enough space in jail for the more than 74 million Americans who voted for President Trump in 2020 despite the strenuous efforts of his most committed enemies.