An important citizen protection against government is the rule that in criminal prosecutions, criminal statutes are interpreted strictly. In other words, if the government wants to punish someone for violating a statute, it has to show that the defendant’s behavior was illegal beyond a reasonable doubt under the clear wording of the statute. Citizens are not held criminally responsible for guessing “wrong” about the meaning of an ambiguous law.

A recent case seems to violate that rule. In United States v. Esquenazi, two defendants were sentenced to substantial prison terms for allegedly violating a statute that was unclear and never had been authoritatively interpreted by a court. The Independence Institute has joined with the Washington Legal Foundation in a “friend of the court” brief asking for Supreme Court review.

* * * *

Speaking of inappropriate behavior by prosecutors: When announcing his resignation, Attorney General Eric Holder told the press, “as a young boy, I watched Robert Kennedy prove during the Civil Rights Movement how the department can — and must — always be a force for that which is right.”

Two aspects of this statement help to explain Holder’s record at the Justice Department. The first is his reliance on Robert Kennedy as a model. Kennedy was one of our most political attorneys general—notorious for turning his position of trust into an instrument of hard-knuckle, partisan politics.

The other is Holder’s statement that the department must “always be a force for that which is right.” But that is not the A-G’s job. The A-G’s job is to enforce the law as written and to advise the government on what the law means. He has no right to expand or contract the law based on his personal political views.

In our democratic republic, it is the prerogative of the elected members of Congress decide what is right—not the prerogative of an unelected attorney general.

On the breakdown of the rule of law in America during the last few years, see my posting here. Another post, discussing U.S. v. Windsor, is also relevant.

Rob Natelson

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