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Hullabaloo


Tuesday, March 04, 2014

 
Rogue prosecutor

by digby

One of the biggest scandals of the Bush Administration was the politicization of the Justice Department, specifically the practice of appointing political flunkies as US Attorneys with directives to interfere in elections. This was clearly run by the political arm of the White House, undermining the independence of the Justice Department in a particularly partisan fashion. But now, it seems we have a Justice Department which has no control at all over its prosecutors, who seem to operate completely at their own discretion. At least one of them is.

Yesterday, the Huffington Post followed a young man as he submitted himself to federal prison for a 2 year term after being convicted of breaking federal law by working for a legal medical marijuana collective in California. Here's the story of the prosecutor:
As the White House revised its position on marijuana policy, U.S. Attorney Benjamin Wagner, an Obama appointee, relied on an evolving rationale to continue prosecuting three people involved with a California medical pot cooperative, according to letters Wagner sent to defense attorneys.

Wagner and his staff cited new reasons to press forward with the case even as they were undermined by shifting administration policy. Ultimately Wagner argued that he had no choice but to push forward because other defendants he had previously prosecuted were still serving long sentences.
It's quite an evolution of legal rationales over the course of time even citing judicial independence from justice department guidelines (which is correct, of course) and then saying:
Wagner and his staff went on to add that even members of the administration are not subject to directives from that administration, but rather will follow the direction of Congress as they interpret it. "The defendant points to press reports about statements of the Attorney General and the latest in a series of memoranda dealing with U.S. Department of Justice policy and priorities dealing with marijuana enforcement ... The Controlled Substances Act continues to be the law until amended by Congress and the Sentencing Guidelines apply no matter where the federal court is located," they wrote. "Thus, defendant Duncan’s argument in this area should be given little weight."
The defendants "argument in this area" was to cite the guidelines on marijuana enforcement set forth by the Attorney General of the United States. Basically, this prosecutor is saying that he answers to no one. Now, I'm all for prosecutors operating without political interference, but this is not that. I have never heard that US Attorneys are allowed to simply ignore the Justice Department if they want to. I guess I assumed that if a US Attorney didn't like Justice Department policy he or she could protest, resign, refuse and/or be fired. But I didn't know they were allowed to simply interpret the laws as they wished and carry on unobstructed.

But that's what happened in this case. He has been allowed to prosecute this case with Javert-like zeal to "send a message":
His changing rationale for pursuing the cases, as seen in the letters, suggests that his analysis was largely political. "The U.S. Attorney said with some clarity that if these guys didn't get jail time, then that would send the signal that nobody would be jailed for marijuana in the district," said Tom Johnson, Duncan's attorney. "It's just a random application of the federal drug enforcement laws. He was literally at the wrong place at the wrong time."

While Wagner was prosecuting the three defendants, another branch of the administration had begun to protect the workplace rights of medical marijuana shop employees.
This raises the main question as to why it should be that anyone should be jailed for marijuana under federal law in California in the first place. (I don't suppose it has anything to do with the practice of asset forfeiture and arrest statistics, but it might be a good idea to ask.) Meanwhile, we have people engaged in legal California medical marijuana businesses being incarcerated under federal law for years. At our expense. And the destruction of their lives and futures.

Can't anyone stop this? Eric Holder maybe? He is the Attorney General of the United States. I would think he has at least a tiny bit of influence. If he doesn't, we need to think very hard about reforming the Justice Department in major ways. US Attorneys should not be subject to political pressures to tilt elections, obviously. But they cannot be allowed to operate as extra-judicial fiefdoms without any accountability at all either. It's a very powerful, unelected office with the ability to ruin lives at the drop of the hat. And they're using it to do just that.


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