Most importantly, whatever the prosecutor does they cannot convict someone. That must be done by a court, an independent agency (in the US).
Tellingly, you’re phrasing that in the passive voice, as if “the law” is “enforced” by higher beings sitting outside the political process. It is not. The enforcement of criminal laws is a political act, performed by political actors. And it is an inherently discretionary political act. Prosecutors actually have no obligation to enforce the law in every circumstance.
> There is no perfect solution but that isn't an argument for lawlessness, especially for powerful political leaders.
It’s not an argument for lawlessness, but rather an argument for viewing the political act of law enforcement as being secondary to the ultimate political act of electing leadership in any scenario where those two things could be seen as being in conflict.
Put differently, you have to see prosecution and elections as political acts that both seek to vindicate the will of the people. After all, criminal prosecutions are brought on behalf of the People to vindicate the public interest in law and order, not private rights. So it’s perfectly legitimate to ask whether, under particular circumstances, it’s more important to enforce some criminal law—especially one unrelated to elections—or whether it’s more important to ensure the public can choose its leaders through elections.
But this is what we get if embezzlement (and insurrection) go unpunished. Someone we look to outside and above the legal system to mete out retribution.
Thus, in some extreme cases, the remedy for misconduct should be elections, or impeachment, not prosecutions.
Why? This is de facto what we have in America. It’s lead to neo-Peronism. It doesn’t work.
The next Democrat candidate could recapitulate Trump’s January 6th pardons by promising to pardon anyone who burns down Teslas. If the rest of their platform is tenable, and if the Tesla fires are a few years in the past, the electorate might be fine with that. (Or not. Either way, the damage gets done.)
Do that for long enough and the public will demand someone outside the political system to rule over it. If you leave the final word on corruption to the political system, the system will evolve an autocratic element that polices itself.
I hope you are not comparing those things - one trying to overthrow democracy and killed people, the other vandalism that damages cars.
One can compare things without equating them. In this case, yes, I am comparing them. (In the end, both have—to date—been nothing more than destruction of property and trespassing. Getting killed being an idiot isn’t the same as killing people.)
If you read my comments (maybe not in that one?), I agree and say that often. We must work with human institutions; that's not argument that they can't work, work well, or are useless. I can't think of an advanced democracy that has used that discretion to block a serious candidate (one who could win).
> It’s not an argument for lawlessness, but rather an argument for viewing the political act of law enforcement as being secondary to the ultimate political act of electing leadership in any scenario where those two things could be seen as being in conflict.
It would allow political actors to break laws with impunity - probably the most dangerous threat to the rule of law is from powerful political actors - simply because there is an election in the future.
America is currently ann argument against popular democracy. Before we concede that electoral politics don’t work in a world with social media, maybe we can give increased prosecutorial discretion a chance. The alternative, after all, is just more authoritarian.
The problem that prosecutorial discretion will have to overcome is selective enforcement, or the perception thereof. The right wing European media is claiming this was common practice across parties. Now I don't know the truth of it, but it is a hard thought to get out of ones head, and a hard negative to prove.
wrt Le Pen, I find it noteworthy that evey English news article I have read avoids describing the actual crime [1], Which does seem more substantial than 99% of the Trump cases.
https://www.lemonde.fr/en/les-decodeurs/article/2024/09/30/w...
That said, in what ways do you think France is different?
This means the POTUS can decide who gets investigated and charged for a crime, and who doesn't get investigated and who gets charges dropped.
The executive can investigate its enemies, and ignore or drop charges for its friends.
Prosecutors are formally under executive control but since 2013 the justice minister should not give orders on individual cases.
France has an additional layer of independence compared to the U.S. because of the juge d’instruction (investigating judge), who is supposed to be independent from the executive like the courts judges, unlike prosecutors.
I say in principle because judges are appointed in France and not elected (similarly to federal judge in the US from what I understood). The executive as some control through appointments and career advancements but they are not supposed to use it to sanction or reward the judges.
The effectiveness of these independence mechanisms remains a subject of active debate, as evidenced by the relatively recent changes made to them.
We have non-FPTP jurisdictions. They still default to partisanship. (The problem is probably too many elections, not enough reliance on appointment and selection by lot.)
There’s a reaction throughout the entire west to free trade and immigration. In America, a plurality of voters supported the guy who promised mass deportations and tariffs, and now they’re getting exactly what they voted for. Maybe they won’t like the results, maybe they’ll be thrilled with them. The results will simply inform the next vote. What’s deeply broken are european systems that are trying to maintain liberalism at the expense of democracy.
But not all the european countries. Denmark and Sweden have retrenched on liberalism in the area of immigration—Denmark’s youngest generation is now more Danish than the population as a whole—and have largely solved the political polarization over the issue. That’s democracy working very well.
Sure. And when the Athenians recalled Alcibiades [1] or put Socrates to death, that was democratic. I’m not arguing it’s not democratic. I’m arguing those were self-destructive acts that show the system didn’t work.
Note that I’m making a distinctly illiberal argument. In that, I dovetail with Trump’s supporters.
Voters being able to override elite consensus to effectuate change to make the country more like what they want is the system working!
If immigration were the only thing this administration were doing we wouldn’t be having this debate.
The system isn’t working. We’re deterministically heading towards a world where we’re poorer and less secure based on policies (tariffs on Europe, Canada and Mexico) and people (Lutnick, Hegseth) that weren’t ever brought up in the election. Even if that had been campaigned on, the fact that the majority chooses stupid policies is an indictment of electoral politics. If the system “working” leads to its own destruction, it doesn’t work.
And that's certainly liberal - that is the same foundation of classical liberalism and modern left-wing liberalism.
It's absurd to suggest otherwise; it's pointless arguments about verbiage. Nobody wants mob rule, nobody thinks of democracy without human rights and indvidual freedom, either scholars or the general public.
> It’s about people being able to vote to live in the kind of society they want.
Why should they get to decide en masse what people do individually? That's just dictatorhip of the majority, of the mob. Freedom is what the US and democracy are about.
> Democracy is not about free trade, or protecting immigrants, or the like.
It is; it's about freedom.
I think you hit the nail on the head with this.
We don't have honor as a social parameter any longer, so lives and fortunes lack the oomph of honor.
Granted, we also avoid the historically evinced drawbacks of honor-based societies, but we seem to have thrown the baby out with the bathwater.
Letting judges bar someone from running for office is silly though, if French law allows that they should reconsider; if someone is popular enough to win a national election despite a reasonable criminal conviction they are popular enough to threaten the civil order if they are barred from office.
In fact, I think the conflict between law enforcement and politics in the Le Pen case is largely self-inflicted. There was no need to include the constraint on running for office in the punishment. And it seems like the wrongful conduct ended in 2017. Why did it take so long to work through to a verdict?
Not in France. You Brits and Americans have that weird Common Law system that relies on broad "laws" (more principles, really), judicial precedent and court decisions, whereas France and most of the world's judiciaries adopted Romans and Napoleon's Civil law system where the legislators write detailed legal codes that the courts then apply.
https://en.wikipedia.org/wiki/Civil_law_(legal_system)
Honestly, for me, Common Law is a medieval sh*tshow where nothing is really legally certain...
...Which is why civil law is the system of 150 countries /s
Consider 18 USC 1343:
> Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.
A politically motivated prosecutor willing to stretch phrases like "property" and "false ... representations" could use 18 USC 1343 to turn minor infractions into federal felonies with the prospect of 20 years in prison. It's entirely up to the prosecutor to ensure that the atomic bomb of 18 USC 1343 is applied only to conduct that actually warrants such extreme charges.
I'd note that, had Jim Comey been willing to push the law as far as the words would allow, he would've had a legal basis to prosecute Hillary Clinton for felonies relating to handling of classified information: https://www.fbi.gov/news/press-releases/statement-by-fbi-dir.... Comey's statement in connection with the decision to recommend no charges is instructive:
> Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.