By Andrew McCarthy, National Review
There is a flip side to the way progressives have perverted the concept of prosecuting crime. It is, in its way, just as insidious as the now-familiar delirium that non-prosecution is the best prosecution.
The flip side is equally the fallout of politicizing state police power. It flows naturally from the conceit that the point of prosecution is to run interference for the Left’s favored groups while penalizing those who oppose progressives. It has only disdain for the quaint idea that we prosecute for the purpose of upholding the rule of law, so society as a whole can flourish.
The flip side is this: When today’s cutting-edge prosecutors do deign to prosecute, the target is ideas, not acts. The objective is not to neutralize those who prey on society, but to frame their acts as part of a morality play: the progressives cast as the guardians of “our values,” and the criminals drawing out contempt more for what motivates them — or, at least, what progressives say motivates them — than for any evil they have done.
This is exemplified by the Kyle Rittenhouse prosecution.
The fact that Rittenhouse, then 17 years old, shot and killed people was not decisive in making his prosecution a national story. More people are routinely shot in Chicago than were shot in Kenosha on that fateful night. And, though not as sedulously suppressed as news of black-on-black violence is, white-on-white violence is usually far too humdrum for the media-Democrat complex to take much notice.
Rittenhouse was prosecuted not for what he did but for what he represented: a white, non-woke, police-supporting teenager exploiting his Second Amendment right to bear arms and his underlying natural right to use his rifle in self-defense. Worse, he engaged in social-justice interruptus. By contrast, the acts of rioters who violently burned down the town were deemed irrelevant, even benign, by the Powers that Be. After all, they rioted in the holy cause of opposing police who shoot knife-wielding, arrest-resisting felons who happen to be black. It is Rittenhouse — the symbol, not the actor — who matters.
In the morality play, then, Rittenhouse occupied the villain-role of white supremacism (of which police are ordinarily cast as the point of the spear). We were to see his attackers, the white left-wing radicals on whom he fired, as not merely honorary oppressed black men but as if they actually were oppressed black men.
You think I’m kidding? Well, Congressman Jerry Nadler, the hack chairman of the House Judiciary Committee (and a New York Democrat who used to pose as a civil-liberties stalwart when the rights of jihadist terrorists were the Left’s cause célèbre) is urging the Justice Department to indict Rittenhouse on civil-rights charges. In this context, that would make sense only if the shootings were motivated by racism — since Nadler’s theory that Rittenhouse was “targeting” protesters’ enjoyment of their First Amendment rights was rejected by jurors who unanimously found that he acted in self-defense (i.e., Rittenhouse was the targetee.)
Happily for the progressive ideologues running the Biden Justice Department, they have no such problem with the three killers of Ahmaud Arbery. He was a young black man, and the killers are white — easily limned as good ol’ boys from the Deep South. So in their case, DOJ has brought the civil-rights indictment that Nadler seeks for Rittenhouse.
The state of Georgia convicted Arbery’s killers — the father and son Greg and Travis McMichael, along with their neighbor and accomplice, William “Roddy” Bryan — despite the absence of evidence that Arbery was killed because of his race. Rather, although the three defendants rationally suspected Arbery of stealing property from a construction site, they were found guilty because they wrongly supposed their suspicion rose to the level of probable cause to make a citizen’s arrest. This egregious error rendered criminal — assault, false-imprisonment, and murder — their forcible apprehension of Arbery and their use of lethal force when he resisted.
So, can you really blame Nadler for thinking Biden’s Justice Department might be willing to haul Rittenhouse into the federal dock? DOJ is proceeding against Arbery’s killers even though there is no reason to do so, given that they are all looking at likely sentences of life imprisonment. Worse, to convict the McMichaels and Bryan of the civil-rights felonies charged, the feds would have to establish beyond a reasonable doubt something Georgia did not even try to show — that it’s all about racism. Nadler has obviously deduced that pointlessness and lack of evidence do not dissuade this Justice Department when there is opportunity to advance the partisan morality play.
Meanwhile, the suburbs of Milwaukee and Detroit both endured horrific mass-murder attacks around Thanksgiving. In Waukesha, Wis., career criminal Darrell Brooks Jr. allegedly killed six people and injured dozens of others, many very seriously, when he raced his SUV through an annual parade. In Oxford, Mich., a tormented 15-year-old named Ethan Crumbley allegedly shot up his high school, killing four students between the ages of 14 and 17 and wounding seven others.
To describe these incidents as atrocious does not begin to do them justice. But let’s try to be clinical for a moment. As egregious as these crimes are, they are just as easy for prosecutors to prove — to convict on straightforward crimes that carry crushing sentences.
These are situations in which there is no doubt about what happened and who did it. By themselves, the murder counts will call for multiple life-imprisonment sentences (with the state having already announced that Crumbley will be treated as an adult for prosecution purposes). If we add in the charges of attempted murder, maiming, and criminal assault (as well as firearms-use charges against Crumbley), we are talking about decades upon decades of additional prison terms. Brooks and Crumbley could live multiple lives apiece and not survive long enough to complete the terms of incarceration that stand, quite justly, to be imposed on them.
Yet, in both cases, prosecutors are not content to charge the crimes that happened. They are going for a crime that didn’t happen — terrorism. It is reportedly being weighed in Brooks’ case, and a terrorism charge already has been lodged against Crumbley.
In a column on Friday, I explained why the Oxford High School mass-murder attack, though atrocious, was obviously not a terrorist attack. The Wisconsin terrorism law is potentially more expansive than Michigan’s, but Brooks did not commit a crime of terrorism, either. We can’t charge heinous acts as terrorism just because, in a colloquial sense, they are terrifying. To make sense as a crime of terrorism, an attack has to be directed at the society qua society, or at its government in an effort to extort policy changes or other concessions.
Violent attacks that involve large-scale taking of life do not qualify as terrorism in the absence of this motivation. That is why terrorism charges are generally reserved for operatives of foreign or domestic terrorist organizations capable of projecting power over time and space. And, as I also noted Friday, when the incumbent president was vice president for eight years, the administration resisted labeling even patent jihadist attacks as terrorism. Obama/Biden officials rationalized that merely being “inspired” by such organizations as al-Qaeda and ISIS was not good enough; there had to be evidence of membership in, or at least operational direction by, a government-recognized terrorist organization.
Brooks and Crumbley are not terrorists. They appear to be cold-blooded murderers. That is plenty bad enough. The instinct to brand them as “terrorists” is political, not legal. In Brooks’ case, perhaps it’s to preen that he is now being taken seriously, in hopes that you don’t remember that prosecutors released him again and again to prey on the streets, despite his 20 years of committing felony after violent felony. In Crumbley’s case, the overreach is transparently part of the progressive crusade against gun rights. It’s the same politics that fueled the Rittenhouse prosecution. It’s the same politics that have led prosecutors to indict Crumbley’s parents for involuntary manslaughter: potentially 15 years’ imprisonment for failing to lock up a gun, which is not a crime in Michigan, however irresponsible it was under the circumstances.
In sum, we have prosecutors who won’t prosecute the “wrong” people for their crimes, and prosecutors hell-bent on prosecuting the “right” people for what they symbolize. They tend to be the same prosecutors. And unlike rule-of-law prosecutors, what moves them is not evidence.
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