Malevolent progressive prosecutors are a threat to the rights of ordinary Americans, too.
Malevolent progressive prosecutors are a threat to the rights of ordinary Americans, too.
T here is now a defensive solution to a great deal of lawfare, at least in the presidential context. In its July 1 immunity ruling, the Supreme Court held that federal prosecutors, who are inferior executive-branch officers, may not inquire into the motives of the chief executive. Where the rubber meets the road, that means that as long as a president’s official acts were within his legitimate executive authority, prosecutors — in particular, those from a subsequent administration of the opposition party intent on abusively criminalizing policy disagreements — may not charge those official acts as crimes just because the prosecutors theorize that the president acted corruptly.
Significantly, this doesn’t mean Congress is powerless to act. To the contrary, the Constitution makes Congress the proper check on executive corruption. Lawmakers may and often do take action — from slashing budgets and declining to confirm nominees, all the way up to impeachment and removal — in response to presidential abuses of power. That is just not the prosecutors’ job. When they undertake to do it, prosecutors undermine the constitutional system, which requires an executive unfettered by concerns that bold action in the nation’s interest will become grist for criminal indictments or civil lawsuits.
That is fine as far as it goes, but there also needs to be an offensive solution to lawfare — a combatting of lawfare by law enforcement, just as federal civil-rights law explicitly intends.
While Donald Trump has been the most notorious target of Democrat-orchestrated lawfare, neither he nor the presidency is the only target. As a matter of philosophy, progressive Democrats see as a virtue, rather than a monstrous vice, the exploitation of prosecutorial power both to pursue progressive policy goals and to clear the field of partisan enemies. Such blatant abuses of power will only be stopped by a Justice Department committed to defending the constitutional rights of all Americans, not just of privileged Democratic interest groups.
I hope the next administration’s DOJ will start in Michigan.
That is where, this week, a Republican poll watcher peeved over what he believed was cheating by Democratic election officials was “bound over” for trial on an elected Democratic county attorney’s ludicrous charge that he’d made a “terrorist threat” — a felony carrying a potential 20-year prison sentence and a fine of $20,000.
The poll watcher’s name is Andrew Hess. A 37-year-old native of Livonia, Mich., he is being represented by my friends at the American Freedom Law Center (AFLC), whose advisory board I’ve served on for years.
On December 15, 2023, during a contentious recount of some local elections from November of that year, Hess believed that Joe Rozell, the director of elections for Oakland County, Mich., was cheating. He complained about apparent tampering with seals on ballot bags, calling their chain of custody into question. Steamed, Hess walked out of the Election Division Training Room at the Oakland County Courthouse, in which Rozell was presiding over the recount.
Well outside the training room, in a near-empty hallway, Hess remarked to a fellow poll watcher, “Hang Joe for treason.”
Now, exasperated people make foolish remarks, and people who get politically active because they fear the other side is cheating in elections are a bit too quick, for my taste, to jump to treason — I might start with fraud, even if it’s not a hanging offense. But to be serious, because this has become quite serious business, there is no dispute that Hess was speaking in a conversational tone, not railing like a madman. And there isn’t a shred of evidence that he intended to hang Rozell or anyone else; at most, Hess’s assertion was an accusation that Rozell should be prosecuted for a crime. But patently, the statement was not a threat, much less a terrorist threat. The remark was not even addressed to Rozell, who was nowhere within earshot.
Kaitlyn Howard, however, was in earshot. She appears to be another politically active person — a senior office-support clerk for the county Election Division who on that day functioned as a receptionist outside the recount room. She would later testify that she doesn’t “take kindly” to the “kind of behavior or language” she observed from Hess.
Like everyone else that day, though, Howard did not act like you’d expect someone to act in the face of a real “terrorist threat.” On hearing Hess’s remark, she felt no need to leave her post in a rush to report it to security personnel. Only later, upon being relieved by a co-worker from covering the reception desk, did she speak with deputy sheriffs who were on duty. She informed them about Hess’s statement and filed a formal complaint. In eventual testimony, she conceded that the remark was not directed at Rozell, who was not in the hallway. Not having been privy to whatever discussion Hess may have been having, Howard was also unaware of the context of the remark.
Maybe it’s just me, but back in the Bronx of my youth, I think the technical term applied to gadflies like Hess by people on the other side of the street was “pain in the ass.” In today’s Lawfare Era, the term has become “the accused.”
Because of Howard’s complaint, Hess was questioned on the scene — not because security personnel perceived a threat but because, having gotten a complaint, they had to go through the motions. Hess unequivocally denied making a threat, even though he had no hesitation in adding that he believed Rozell was cheating on the recount. “All I did,” he told the officer, “was accuse [Rozell] of a crime.” Hess analogized this to stating that a person one believed had committed a murder should “go to jail for the rest of their lives.” No reasonable person who heard that would deduce that the declarant was threatening to forcibly cart the suspect off to prison; it would be understood as an expression of opinion that the person should be charged by the prosecutors, tried in court, and then sentenced accordingly.
Hess’s remark was so unserious that the officers on the scene allowed him to reenter the room in which Rozell was still presiding over the recount. Hess even made a statement during the public-comment period. In it, according to a report filed by one of the deputy sheriffs who was present, “While voicing his opinion to the board, [Hess] stated that what has transpired is considered treason and would leave it up to everyone to look up the punishment for treason.” A photo of Hess speaking at the recount is here. Police are depicted standing by at a distance with arms folded; there’s only so much you can tell from a snapshot, but other attendees appear bored, not alarmed, let alone threatened.
Since we’re now headed into the constitutional-law portion of our program, a bit more throat-clearing.
To repeat, I am not endorsing Hess’s remarks. Like comparisons to Nazis, accusations of treason should be avoided — though in this instance, I am constrained to say it was no more ridiculous for Hess to accuse Rozell of treason than for the progressive prosecutor to accuse Hess of making a terrorist threat. Treason is a heinous crime — the only crime defined by the Constitution — and it carries a potential death penalty (and, at a minimum, a five-year prison sentence under federal penal law). Moreover, as treason requires proof that an American has aligned with or rendered aid to wartime enemies of the United States, it is nonsensical to accuse an election official of treason during peacetime, even if one suspects the official of election-rigging — a serious offense, to be sure, but not in the same ballpark as treason.
Still, overwrought or obnoxious expression, as long as it stops short of incitement, would not even be a tenable basis to ban someone from serving as a poll watcher. If Director Rozell believed he had been slandered, he’d presumably file a civil lawsuit — but probably hasn’t because it would likely be a waste of time and money: Statements of opinion are not deemed defamatory, and statements that no one takes seriously are not compensatory-damage jackpots.
But to charge this as . . . a crime? A crime of terrorism punishable by decades of imprisonment? That’s not just absurd. Prosecutors are sworn to uphold the Constitution, very much including the constitutional rights of cantankerous, opposition-party poll watchers. State prosecutors who use their power to deny those rights are themselves in violation of federal criminal law.
So non-threatening and non-criminal were Hess’s remarks and behavior that, just as the police on the scene never came close to making an arrest, no prosecutorial action was taken for about four months.
At that point, in April, Karen McDonald, the elected progressive Democratic prosecutor for Oakland County, filed a criminal complaint charging Hess with making a terrorist threat, in violation of §750.543m of Michigan’s penal code. This statute makes it a serious felony if a person “threatens to commit an act of terrorism and communicates the threat to any other person.”
To describe this application of the statute as preposterous does not scratch the surface. Even if Hess had been serious — and there is neither subjective nor objective evidence that he was — what he said did not constitute a threat. And even if he actually had threatened to hang Rozell (as opposed to hyperbolically opining that Rozell should be charged with and tried for treason), that would not be an act of terrorism — it would just be a threat, criminally actionable under other, less serious penal laws.
As AFLC’s Robert Muise pointed out in a compelling motion to dismiss the charges, the Michigan courts have construed the cited statute to proscribe only statements that communicate “a serious expression of an intent to commit an act of terrorism” — i.e., a “true threat . . . not . . . something like idle talk, or a statement made in jest, or a political comment.” Hess’s statement was an obvious political comment, made idly, not made to Rozell, not made with an intent to incite violence, and not made under circumstances in which violence was foreseeable, much less imminent.
Mind you, another section of the Michigan penal code (§750.543z) admonishes that “a prosecuting agency shall not prosecute any person or seize any property for conduct presumptively protected by the First Amendment to the Constitution of the United States in a manner that violates any constitutional provision” (emphasis added). It is not enough, then, to say prosecutors are well aware that they must not bring charges that are unsupported by facts and law; in Michigan, they are expressly directed by law not to use their awesome powers to suppress free expression or otherwise criminalize constitutionally protected activity. That is, while state law was not violated by Hess, it is being violated by McDonald’s prosecution of Hess.
It is elementary that speech conveying political hyperbole is protected by the First Amendment. In Watts v. United States (1969), the Supreme Court confronted heated political speech that was markedly closer to a threat than anything uttered by Hess: At a public rally, Robert Watts had vowed that, if drafted and made to carry a rifle, he hoped to shoot President Lyndon B. Johnson (“the first man I want to get in my sights is L.B.J.”). In throwing out the conviction on a charge of making a threat on the life of the president, the Court emphasized our nation’s
profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
Consequently, the justices explained, “the language of the political arena . . . is often vituperative, abusive, and inexact.” Such language is not terrorism. It is political speech in a free society.
McDonald knows this. It is rudimentary. Any prosecutor would know it, because, again, law enforcement means enforcing all the laws, including the Constitution’s free-speech protections. A county prosecutor’s solemn obligation includes not only protecting fellow Democrats from harm but giving force to the civil rights of all members of the community, including partisan opponents. Yet, McDonald cast aside her duty and filed charges, using Hess to peddle the Democrats’ hobby horse: Republican are “putting our democracy at risk.”
What threatens our democracy — better, what threatens ordered liberty in our democratic republic — is malevolent prosecutors, whose politicization of their power shrivels our constitutional safeguards into parchment promises.
McDonald’s outrageous “terrorist threat” charge led to a preliminary hearing that, after several postponements, finally took place at a state district court in Pontiac, a Democratic bastion, before Judge Ronda Gross, a Democrat.
I’m sure you’ll be shocked to hear that Judge Gross has bound Hess over for trial. By law, the preliminary hearing at which such a determination is made is a lopsided affair at which the prosecutor’s burden is negligible. Beyond that, the judge denied defense efforts to call as witnesses the deputies who were at the recount — i.e., efforts to demonstrate that there was no plausible threat of violence. Hess was also rebuffed when, to negate the prosecution’s so-called evidence of criminal intent, he sought to introduce body-cam video from one of the deputies, in which Hess described the threat complaint as “silly,” and said he was simply accusing Rozell of a crime, not threatening anyone.
The point of having a free-speech guarantee etched into our fundamental law is to prevent such frivolous allegations from being lodged by prosecutors. It’s not supposed to have to be a defense, it’s supposed to be why Americans do not need a defense when they express themselves in the political realm — even noxiously, as long as they are not calling for violence under circumstances where the threat of violence is real and imminent. As the Watts Court admonished, when prosecutors ignore the Constitution and their oath to uphold it, the judge’s job is to protect the accused — not enable the elected prosecutor’s partisan political agenda.
Too often, though, Democratic judges do not hold Democratic prosecutors to account. Philosophically, they sympathize with the egregious conceit that legal processes, rather than a bulwark against bogus charges, are a wringer through which progressives should put their antagonists. The blunt message is that resistance is futile: Even if the case eventually craters before a higher court, the process has already served its purpose as the penalty — legal fees, public humiliation, employment loss, and high anxiety.
Just such a nightmare is what Andrew Hess is looking at, even if he wins in the end. And he’s far from alone. For every direct victim of lawfare, there are legions of others who suppress their own speech and straitjacket their own political preferences for fear of becoming the next Andrew Hess. The in terrorem effect is lawfare’s objective.
A free country can’t go on this way. And it shouldn’t have to. The federal civil-rights laws make it a crime to conspire against the lawful rights of Americans. Progressive Democrats would have you believe that civil-rights law is the purview of their preferred constituencies, identity politics, and anti-police crusades. In reality, at least on paper, the laws protect every American (“any person”) from being “injured, oppressed, threatened, or intimidated” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”
State prosecutors who bring criminal charges based on speech or expression that is manifestly protected by the First Amendment are not just abusing their powers; they are violating federal criminal law. It’s past time to have a Justice Department Civil Rights Division committed to defending Americans rather than abetting progressive authoritarians.