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Conservatives Are Obsessed With Prosecutorial Overreach

Unfortunately for millions of Americans, only one case matters: Trump’s.

Theo Wargo / Getty Images

One evening in June, Sean Hannity began his nightly Fox News show indignant about the “Mueller witch hunt.” It is a favorite topic of Hannity’s: A recent study found that, between May 2017 and May of this year, almost 60 percent of his opening segments focused on the special counsel Robert Mueller’s investigation of President Trump and his associates. This particular evening, he was irked by Mueller’s reported request for electronic information from certain witnesses. “[Prosecutors] are demanding that witnesses turn in their phones so that team Mueller gets to review all of their electronic communications.” Hannity said, his graying hair perfectly coiffed and his voice thick with outrage. “Even texts that are on encrypted apps.” He riffed some advice to the witnesses. “Delete all your emails and then acid-wash your emails and hard drives on the phones, then take your phones and bash them with a hammer to little itsy bitsy pieces,” he said. (Later, perhaps realizing that asking people to obstruct justice on national television is not a great idea, Hannity clarified that he was joking.)

Hannity isn’t alone. A May survey found that 76 percent of Republicans think the investigation is a “witch hunt,”while about 75 percent of Democrats consider it legitimate. Conservative personalities and politicians have been publicly wringing their hands, convinced that Mueller is guilty of exceeding the boundaries of appropriate prosecutorial power. The Federalist notes “a pattern of abuse of prosecutorial discretion,” citing Mueller’s decisions during his 12-year tenure as FBI director. The right-wing organization Freedom Watch has filed a federal suit against Department of Justice officials demanding Mueller be removed on account of his “gross prosecutorial misconduct.” And conservative site RealClearPolitics, in a commentary called “Special Prosecutorial Abuse,” characterizes Mueller’s investigation as a “crusade”: “The liberals worried about a police state? In some respects, it feels as though it’s already here.”

Whether Mueller is overstepping his authority is a matter of opinion. But this conservative indignance rings hollow. For over three decades, conservatives—and many liberals—have encouraged the expansion of prosecutorial power. They’ve sat idly by as the prison population exploded. They watched our criminal justice budget skyrocket. They’ve heard stories of primarily Black, brown, and poor people facing draconian punishments that far exceeded the alleged crime. And yet, many of them have looked the other way as prosecutorial discretion grew unchecked.

Tom Fitton, the president of conservative think tank Judicial Watch, claimed on “Fox and Friends” that “[Mueller’s] operation is the most secretive I can remember,” and that “it’s difficult to get basic information about what he’s been up to.” He failed to mention that opaque investigations are the norm. Prosecutors rarely provide information to defendants unless they absolutely have to. In fact, in 10 states, prosecutors can wait until right before trial to give evidence to the defense, including witness names and statements. Often, defendants have to negotiate a plea deal without even knowing if the state has any evidence against them.

Many Republican congressional candidates have claimed that Mueller’s investigation, which started last May, has lasted too long. Yet those same candidates say nothing about the epidemic of excessive pretrial delays in America, even in relatively minor cases. Waiting two or three years for a case to go to trial is not uncommon. And defendants who aren’t rich and connected often spend that time in custody simply because they can’t afford bail. In New Orleans, a man was found to have spent eight years in jail awaiting trial on a drug charge.

Some of Trump’s confidantes are especially hypocritical. Rudy Giuliani, Trump’s lawyer, also complained about the length of the Mueller probe, stating, “It’s about time to say, ‘Enough. We’ve tortured this president enough.” And after rumors circulated that Mueller had wiretapped Michael Cohen, Trump’s former personal lawyer, Giuliani said, “It’s not appropriate. I mean, he’s a lawyer. … [T]hey’ve already eviscerated the attorney-client privilege. This would make a mockery of it.”

In fact, as a former prosecutor, Giuliani often flouted the law, not only infringing on the rights of defendants but boasting about it. One of those rights was, of course, attorney-client privilege. Giuliani was infamous for “extensive wiretaps and the subpoenaing of defense attorneys,” the New York Times Magazine  wrote in 1985. He was also unapologetic. ”If I don’t tip in favor of law enforcement, who will?” he asked, according to the Times. ”The civil libertarians won’t.”

Lest we believe this is just one party’s problem, Democrats have been so blinded by  the Mueller investigation that some are pursuing punitive new laws in the hopes they might be used against Trump and administration officials. One of our most critical constitutional protections is the prohibition of double jeopardy, meaning the right to not be prosecuted twice for the same crime. There are exceptions to this rule: Depending on the state, prosecutors in state court and federal court may be able to both charge a person for the same action. But, generally, this ban on double jeopardy is an important shield against state power for defendants. Yet in New York, a bill that would make it easier to prosecute people twice for the same crime is garnering support because it could be used to prosecute defendants who have received pardons from the president.

As prosecutorial power has increased, so has the prison population, creating a mass incarceration crisis that has seen millions of people spend months, years, even decades of their lives languishing in jails or prisons. But prosecutorial overreach is usually unacknowledged by those decrying it today. Hannity has called the Mueller investigation a “monumental abuse of power” and has claimed that “Mueller is causing irreparable damage to the rule of law in this country.” But prosecutors have been causing irreparable damage for decades, with little attention from Hannity and his fellow conservatives. That damage is only compounded by the countless people in the Republican Party who seem to think that only Donald Trump deserves a more restrained justice system.