Welcome to America’s new privatized and weaponized system of justice.

In a speech to the Conference of United States Attorneys in 1940, then-Attorney General and future Supreme Court Justice Robert Jackson spoke of the danger inherent in the prosecutor’s authority not just to pick his cases but to pick his defendants.

“Therein is the most dangerous power of the prosecutor,” Jackson warned, “that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.”

Jackson elaborated, explaining that with numerous laws on the books, a prosecutor can find a technical violation by almost anyone. This turns justice on its head, where prosecutors pick a person and then search for a crime to charge them with, often driven by personal or political motives. 

Eighty years later, Justice Jackson’s warning has become a playbook, and not just for the Department of Justice but also for state attorneys general, county prosecutors, Congress, and partisan groups. These entities have made unprecedented efforts to “Get Trump,” a former president of the United States and leading candidate for reelection to that office.

But that’s not all they’ve done. They have also targeted his attorneys, top advisors, and rank-and-file supporters, many of whom have been (or are still being) subjected to criminal prosecutions, bar disciplinary proceedings, and calumnies. All of these actions are designed to make them “toxic” in their communities and thereby send a message to others who would, in the future, deign to challenge destructive government policies or illegality in elections that keep the purveyors of such policies in power.

The farce began with the U.S. House of Representatives Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Former Speaker Nancy Pelosi’s refusal to allow Republican Minority Leader Kevin McCarthy to appoint serious and well-informed Republicans to the committee ensured a biased committee. Instead, Pelosi appointed two of the most virulently anti-Trump Republicans in the House—Liz Cheney and Adam Kinzinger.

The committee showed no interest in investigating Capitol security or recommending legislative changes. Instead, it acted as a super FBI, Justice Department, and criminal court all rolled into one. Representative Cheney emphasized that their goal was to hold Trump accountable. Using language from a federal statute designed to prevent mob witness intimidation and financial record destruction, Cheney suggested Trump corruptly sought to obstruct Congress’s electoral vote count. Perhaps Cheney missed the separation of powers lecture in her constitutional law class at the University of Chicago, as investigating alleged criminal conduct is not a responsibility the Constitution assigns to Congress.

The committee bypassed normal legal procedures, issuing subpoenas without demonstrating probable cause, cherry-picking evidence to support its clearly false insurrection narrative, and hiding from public view (and, as we have subsequently learned, ultimately destroying) any evidence to the contrary.

In my own litigation to protect privileged documents that had improperly been retained and archived by my former university employer, the committee successfully contended, before a judge only too happy to oblige, that it didn’t need to produce exculpatory evidence, overriding attorney-client privilege with a manufactured crime-fraud claim.

Furthermore, the committee even took the extraordinary position of assuming judicial roles, determining for itself whether claims of privilege asserted by the witnesses it hauled before its Star Chamber were valid. And it then referred for criminal prosecution people like Peter Navarro and Steve Bannon, who dared to challenge its authority.

After a series of made-for-TV show trial hearings, the committee issued a report fitting its predetermined narrative. It included in the report criminal referrals based on “creative” readings of criminal statutes, similar to what was being dug up by private groups scouring the U.S. statute books to see what could be distorted to fit the singular effort to “get Trump.”

One such group, Just Security, funded by George Soros and based at NYU School of Law, published a “model prosecution memo” supporting Trump’s indictment for challenging the 2020 election results. 

The memo’s authors are Democratic activists and donors, further highlighting its partisan nature. Among them are Norman Eisen, Noah Bookbinder, E. Danya Perry, Debra Perlin, Kayvan Farchadi, and nominal Republican Donald Ayer, whose last Republican support was in 1999.

In short, like the report of the Jan. 6 Select Committee that it touts, the Just Security prosecution memo is a highly partisan advocacy piece, not a neutral assessment of either fact or law by disinterested parties. It gives rise to the very concerns of prosecutorial abuse Robert Jackson warned about in 1940. Rather than resisting these partisan referrals, the Department of Justice eagerly pursued them, using them to justify further actions against Trump.

Enter Special Prosecutor Jack Smith, appointed by Attorney General Merrick Garland, known for abusive prosecutorial tactics and creative uses of federal criminal statutes. He brought unprecedented charges against Trump using the statute Liz Cheney had cited, 18 U.S. Code § 1512, designed to prevent mob witness intimidation. 

Originally meant to punish serious offenses like killing or intimidating witnesses by prescribing up to 30 years in federal prison, the statute was expanded post-Enron to include the destruction of financial records in order to avoid criminal prosecution, “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

At the end of June, the Supreme Court blocked the kind of creative use of the 1512 statute that Smith had used on Trump. This also dealt a blow to the aggressive prosecutors who have sought to further Congress’s insurrection narrative against citizens who entered the Capitol on Jan. 6, 2021, while protesting illegality in the 2020 election. Had the Court ruled otherwise, the First Amendment’s protections of speech and the right to petition the government for redress of grievances would have been dealt a death blow.

So far, though, concerns with the niceties of constitutional rights have not been an impediment to other prosecutors and even private partisan groups who remain on a mission to “get Trump” and all those who support him.  

Raising questions about the validity of elections is political speech at the core of the First Amendment’s protection of free speech. The right to petition the government for redress of grievances is most often exercised by citizens urging action by legislators, state and federal, or by filing complaints in the courts of law by legislators, both state and federal. There was certainly enough evidence of illegality in the 2020 election to warrant such constitutionally protected efforts by citizens and by the attorneys they retained to assist in the exercise of those constitutional rights.

Yet groups like The 65 Project, led by former Clinton operative and Media Matters founder David Brock, seek to disbar and shame attorneys involved in these efforts, aiming to deter future election challenges and reduce the pool of available legal talent. 

Brock has candidly admitted to Axios that his group seeks not just to disbar attorneys who worked on Trump’s election lawsuits but to “shame them and make them toxic in their communities and in their firms.”

Brock has candidly admitted to Axios that his group seeks not just to disbar attorneys who worked on Trump’s election lawsuits but to “shame them and make them toxic in their communities and in their firms.” An anonymous person involved with The 65 Project also told Axios its actions were designed to starve future election challenges (only by Republicans, one suspects) and “kill the pool of available legal talent going forward.”

State and local prosecutors have also taken the unprecedented steps of bringing criminal indictments against not just President Trump but the citizens who supported him and the attorneys who provided legal advice. Fulton County District Attorney Fani Willis used the Racketeering and Corrupt Organizations Act RICO statute, originally an anti-mob tool, to indict Trump and his associates. Like the creatively used 1512 statute, the Georgia RICO statute also includes a 20-year felony prison term upon conviction. 

Similarly, attorneys general in Michigan, Nevada, Wisconsin, and Arizona have filed criminal charges against those protesting the 2020 election results. This is an attempt to stop them from exercising their First Amendment rights to protest illegality in the 2020 election that they—along with tens of millions of other Americans—quite reasonably believed may have swung the election.

One of the grievances the American colonists had against England was the English law of seditious libel, which allowed criminal prosecution of those who criticized the government. Truth was not a defense, as “the greater the truth, the greater the libel.” With the adoption of the First Amendment, our forebears quite deliberately rejected the law of seditious libel. Criminal prosecutions for the exercise of constitutional rights have heretofore been anathema in a free society, particularly in this free society. One hopes the tide is turning on those practicing this unprecedented American lawfare, but how the story ends is yet to be written.

There is a populist uprising in this country against an increasingly authoritarian and out-of-touch central government. It began, perhaps, with the Tea Party movement and achieved a mighty if unexpected victory with the 2016 election of Donald Trump. Trump’s Make America Great Again movement bears a strong resemblance to the “Rebel Alliance” in the first Star Wars movie, which destroyed the Galactic Empire’s Death Star to achieve victory.

The victory then was short-lived, as it was with Trump’s 2016 victory. The Empire Strikes Back was the name of that series’ first sequel, just as one might see the Trump impeachments, the 2020 election, and the Jan. 6 prosecutions as “The Deep State Strikes Back.” The original Star Wars trilogy ended happily with the death of the Emperor and the defeat of the Galactic Empire. One hopes our current efforts against an entrenched and oppressive central government will have a similarly happy ending.  

Our Empire is still striking back, but there are signs that a return to justice is in the works. Just recently, the indictment against the Nevada electors was thrown out by the Nevada court. The Supreme Court has put the lid back on the “creative” use of the 1512 statute. The criminal charges filed by the attorney general in Arizona are being subjected to an anti-SLAPP motion (anti-Strategic Litigation Against Public Participation) designed to afford protection to defendants wrongfully sued for the exercise of their constitutional rights. Anti-SLAPP suits are common among the states in civil litigation, but Arizona is the first state to include criminal prosecutions in its statute.

Alas, only time will tell whether the crop of attorneys challenging the Empire in these matters will become Jedi heroes protecting this constitutional republic.