In his second Inaugural Address, President Trump declared that “the weaponization of our Justice Department will end” and promised to “re-balance” its scales.
Hours later, he issued an executive order adding teeth to that pledge.
Because the Biden administration “engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process,” Trump wrote, the president directed his administration to investigate the involvement of all federal agencies.
Much of the effort to end lawfare will focus, as it should, on the Democrats’ use of federal and state prosecution to cripple candidate Trump.
But the Trump Justice Department must also counter the misuse of prosecutorial authority against people with far less resources and fame.
The most glaring example comes from New York City, where Manhattan District Attorney Alvin Bragg — when not busy exaggerating claims of bookkeeping mistakes into a case of election interference against Trump — prosecuted Marine veteran Daniel Penny for the chokehold death of a violent subway rider, Jordan Neely.
Bragg painted Penny as a lawless vigilante, but a New York jury acquitted him for his heroic protection of his fellow citizens.
This week’s executive orders show this White House understands the threat.
Trump’s Day 1 executive order on “Ending the Weaponization of the Federal Government” condemned the Biden administration for unconstitutionally using its law-enforcement powers for political purposes, wielding them against “parents protesting at school board meetings, Americans who spoke out against [Biden’s] actions” and others.
To correct these misdeeds, Trump has at his disposal broad authority to fire federal agents and prosecutors who knowingly used their terrible powers for political purposes. He can order reforms in the federal bureaucracy to prevent abuse in the future.
But some of the most serious violations of constitutional rights in the last four years occurred at the state and local level. Trump cannot fire Bragg, who does not answer to the federal government, nor can he order changes at the Manhattan DA’s office.
To stop the progressives’ abuse of the criminal-justice system, Trump may have to rely on the same legal theory that the Biden Justice Department used against him — and investigate them for depriving Americans of their constitutional rights.
With Penny’s case in mind, Justice Department prosecutors could examine whether Bragg and other New York officials violated a federal statute, 18 U.S.C. 241, which prohibits conspiring to “injure, oppress, threaten, or intimidate” a person exercising constitutional rights or privileges.
Freedom from racial discrimination is a central constitutional right, so Trump’s Justice Department should investigate whether Bragg and his office considered race in making their decision to prosecute Penny for murder.
They should broaden their investigation to probe whether Bragg considered race when he announced, shortly after taking office, that he would cease prosecuting felonies like resisting arrest and low-level drug crimes, and water down other charges, such as robbery and burglary, for reasons of race-based “equity.”
Trump’s attorney general could expand such a federal civil-rights investigation beyond race, to examine whether Bragg and other New York officials, such as Attorney General Letitia James, have made charging decisions based on a partisan political agenda.
Another core constitutional right is the freedom to speak and associate without government interference. Both Bragg and James run in partisan elections, but once elected the Constitution forbids them from using their power to punish or reward based on political viewpoint.
New York City, like many progressive cities, chose not to bring serious charges against Black Lives Matter protesters, but brought high-profile cases against Republicans — most obviously, their cases against Trump.
Other Democratic prosecutors, such as Fani Willis in Atlanta, also seemed to target Republicans while leaving progressive lawbreakers alone. Meanwhile, state and local prosecutors’ efforts to target groups like Moms for Liberty who protested destructive COVID-19 lockdowns may also have violated rights of free speech and association.
Progressives cannot complain that Trump abuses federal civil-rights law by opening these investigations. If a Southern state prosecutor, during the awful years of segregation, had brought charges primarily against blacks and supporters of the Civil Rights movement, there’s no doubt the Justice Department could investigate under Section 241 — and rightfully so.
Even former Attorney General Merrick Garland would have to agree. He allowed special counsel Jack Smith to bring an unprecedented claim that Trump and his aides had violated voting-rights laws by challenging the 2020 election results.
That’s an unsupported legal theory the courts ultimately would have rejected — but an investigation based on actual racial discrimination, or the prosecution of political opponents, would fall squarely within the purpose of federal civil-rights laws.
Trump can strike a blow for the rule of law and restore public faith in the criminal-justice system if he uses his executive order not just to defend himself against lawfare, but to undertake the harder work of pursuing the abuse of state and local criminal justice, as seen most dramatically in New York City with the case of Daniel Penny.
John Yoo is a distinguished visiting professor at the School of Civic Leadership at the University of Texas at Austin, where he is also a senior research fellow at the Civitas Institute.
This story originally appeared on NYPost
