In By the People: Rebuilding Liberty Without Permission, Charles Murray’s terrific book on the death of American constitutional order, the famed social scientist tells a remarkable anecdote that suddenly seems very prescient:
A former member of the US Attorney’s Office in New York has written about a popular training exercise among the staff: Name a famous person and then tell the junior prosecutors to figure out a plausible crime that could be pinned on him. The junior prosecutors win the game by finding the most obscure offense that fits the character of the celebrity and carries the toughest sentences.
Indeed, Murray goes on to note that this isn’t merely a game — there are many notable examples of how prosecutorial discretion is indistinguishable from lawlessness and that this seems to be particularly evident when America’s law enforcement apparatus gets involved in cases involving celebrities or high-profile targets. In the infamous case of financier Michael Milken:
The judge threw out the only real criminal charge, insider trading, leaving charges of violating financial regulations that, as the prosecutor in the case later acknowledged, amounted to “criminalizing technical offenses.” The regulations in question hadn’t ever been charged as crimes before, nor have they been charged as crimes since.
By the People was published nine years ago, and with the Trump conviction in New York, we may well have just witnessed the nadir of abuse of prosecutorial discretion. It’s not just that a former president — and the leading contender
