Daniel Horowitz Op-ed: Talk or action? 7 actions Trump supporters should promote to stop politically targeted prosecutions
DANIEL HOROWITZ | March 31, 2023
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“Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.” ~John Jay, in Georgia v. Brailsford, 1794
The die is cast. The political persecutions have been happening against average conservative citizens for several years, but it took the indictment of Trump to finally get people’s attention. We no longer have equality under the law. It’s quite evident that a conservative living in a blue state or being prosecuted by the feds in D.C. will never get a fair shake from the prosecutor, judge, or jury. Nothing will change that. The question is whether red states will make their states sanctuaries for liberty and as unhospitable to their political enemies as blue states are to our people.
It wasn’t always this way. We’ve been an extremely divided and polarized nation for quite some time. Sure, in the realm of court decisions or the legal process affecting broad political issues, the political bias of the judges was always quite apparent. But when it came to an individual criminal case, it was always the law that governed. As recently as 2016, a unanimous Supreme Court vacated the conviction of former Republican Governor Bob McDonnell for bribery because they all clearly understood that the governor’s hosting of a company he benefited from, while reeking of sleaze, is endemic of both sides of the political divide and clearly did not meet the definition of bribery under the Hobbs Act.
We no longer live in a world of equal justice under the law. We’ve witnessed how in the same capitol city where violent criminals are released or not prosecuted, Army veterans with clean records were held pretrial and denied due process up and down the legal system on what was, at most, non-violent misdemeanors, and at worst government provocation and entrapment. All of this is taking place while the worst Antifa rioters can take over city streets for weeks with brutal violence. Aside from Elizabeth Warren’s isolated moment of intellectual honesty decrying solitary confinement for J6 defendants, we’ve seen no such outcry for equal treatment. Those perpetrating this believe we are subhuman and not afforded equal protection under the law.
Some countries are open and anarchic like places in the Third World; others are very authoritarian like Singapore, where everyone is punished pretty severely for relatively minor infractions. But what we have here is a two-tiered justice system that is tantamount to targeted and systemic persecution. This is how we wind up with D.C. U.S. Attorney Matthew Graves refusing to prosecute 67% of all arrests, including 52% of all felonies, but announcing 1,200 new prosecutions of J6 protesters, many of individuals who didn’t even violate minor trespassing laws. This is how you have endless Antifa and BLM riots where the most violent people who beat, maimed, looted, and burned police stations to the ground got less punishment than the most innocuous J6 suspects.
We cannot share a country with people who don’t fundamentally believe in equality under the law. This was self-evident before the Trump indictment, and frankly, it’s shameful that so many conservative voices didn’t respond emphatically to this emergency until it affected their man. Nonetheless, if this is what it takes to unite behind a forward-looking agenda, we’ll be better for it. Thus, the only answer is to militarize the legal system of red states just as emphatically as blue states. To that end, red state governors and legislatures should do the following:
1) Fund legal defense of persecuted individuals: The first step is defense. Obviously, Trump has a war chest, but most of his supporters being persecuted or pro-life activists being targeted for praying outside abortion clinics don’t have money. It’s also extremely hard to even get a lawyer willing to fight the system. I personally had trouble finding people lawyers when fighting January 6 charges or businessmen being prosecuted for the “crime” of opening their stores during COVID. Red states should set up a legal defense fund to contribute to the legal defense of those the state AG determines are being targeted with unequal treatment based on political, religious, or social beliefs. The AG’s office can also marshal pro bono lawyers willing to help who know that they will get moral support from the state rather than being targeted as pariahs in their profession for representing such clients.
2) Refuse to extradite: Gov. DeSantis just set a precedent that Florida will not assist with extradition of those politically targeted. Other red-state governors should refuse to extradite people being accused of non-violent crimes when there is compelling evidence that other people accused of similar actions are not targeted with the same level prosecution. In the case of Trump, because he is protected by the Secret Service, there was never a chance that the NYPD would somehow be able to nab him in Florida. But for ordinary citizens, it’s important for red states to make the statement that they will serve as constitutional sanctuaries for equality under the law. This will be harder to pull off in the face of a federal prosecution, but the time has clearly come to tell the blue states to shove it. Every red-state legislature should empower its state AG to block extradition if he determines it is for political reasons.
3) Slash the ABA monopoly: Connected to the previous point, it’s time for state legislatures to require their state judiciaries to recognize alternatives to the American Bar Association, which has unlawfully claimed a monopoly on the entire legal profession to the point where people cannot obtain legal representation over the ABA’s veto. The ABA is sanctioning people like Rudy Giuliani and Professor John Eastman for simply offering their view on constitutional questions.
4) Refuse cooperation with rogue federal agencies: Red states need to pull out of all joint training, sharing of information, and help with logistics or intel to any federal law enforcement agency that continues to target people for their political beliefs.
5) Prosecute the left more zealously: It’s time to fight fire with fire. Just this week, there was a left-wing insurrection at the Tennessee Capitol. We’re not asking red-state prosecutors to take minor misdemeanors and hold people pretrial for two years as the left has done with J6 defendants. However, they should more aggressively use catch-all felony statutes to throw the book at people who legitimately act violent or Democrat politicians and outside groups that legitimately violate laws.
Even though they don’t control the federal government, Republicans control half the states and can easily make these changes today. That’s why the primary focus should be interposing on behalf of the people’s liberties at the state level. However, given the federal tyranny, there is a need to at least push for legal reforms against political targeting with legislation in the House.
6) Pass the “Political Targeting Prosecution Act”: Defendants can theoretically assert an Equal Protection Clause violation; however, practically, the courts have made it almost impossible to succeed in a claim of a selective prosecution defense under the Equal Protection Clause. As such, Congress should pass the Political Targeting Prosecution Act, which would accord defendants the opportunity to present evidence of political targeting based on animus for the individual’s religious or political beliefs. For example, if defendants could show how no BLM rioter who was much more violent was charged with obstructing law enforcement during a public disturbance (18 USC 231(a)(3)), it would trigger a motion to dismiss based on unequal treatment.
7) Fair jury pools: With a country more divided than during the Civil War, it’s self-evident that conservatives cannot get a fair trial in liberal jurisdictions. This has rendered the Sixth Amendment’s guarantee to a trial by a jury of one’s peers irrelevant. In order to restore the spirit of that right in this era, Congress must demand that a conservative defendant charged in D.C. can move the trial to the federal jurisdiction where the defendant resides. There should also be a federal right to request an expanded jury pool 20-30 miles outside a major city to obtain a more “equitable” share of like-minded people composing the jury in criminal cases. So for example, whenever Democrats control the Justice Department, by definition, any political opponent will be charged in D.C. with a 95% Democrat jury pool. The new law would prescribe that the individual is tried either in his home state or, if he resides in D.C., he could request a jury pool to rope in parts of Maryland, Virginia, and the West Virginia panhandle to achieve more balance.Trump fans are absolutely correct in asserting that this is about much more than Trump. Indeed, the political persecutions have been going on for quite some time before this indictment. So let’s make our response about more than Trump and more than just promoting talking points. It’s time for action. Let’s systemically combat the weaponization of the justice system against those who have no voice, money, or legal help.
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