NEWS ARTICLE REVIEW: CRIMINAL PROCEDURE ASSIGNMENT
This News Article Review is about a June 15, 2022 article entitled Senate Republicans
Press Garland On Lack Of Prosecutions For SCOTUS Home Protesters, by Madeleine Hubbard
of JustTheNews.com, available online at www.justthenews.com/government/congress/senate-
republicans-press-garland-why-doj-isnt-prosecuting-protestors-targeting (last visited 6/19/22 at
915pm). According to the article (and common knowledge), in May 2022 Politico published a
leaked draft opinion indicating conservative Supreme Court Justices Alito, Thomas, Barrett,
Gorsuch, and Kavanaugh voted to overturn the controversial abortion ruling in Roe v. Wade, 410
U.S. 113 (1973). 1 As a result of such leak and publication thereof, liberal/democrat groups,
individuals, and public representatives publicly disseminated the addresses of and vociferously
incited protests/pickets at the homes, churches, and places of frequency of such justices, and
thousands of protestors began doing so. Federal law states that
“[w]hoever, with the intent of interfering with, obstructing, or impeding the
administration of justice, or with the intent of influencing any judge…or court
officer in the discharge of his duty, pickets or parades…in or near a building or
residence occupied or used by such judge…or court officer, or with such intent
uses any sound-truck or similar device or resorts to any other demonstration in or
near any such building or residence, shall be fined under this title or imprisoned
not more than one year, or both.” 18 U.S.C. §1507.
Such law is constitutional. See Cox v. Louisiana, 379 U.S. 559 (1965)(upholding nearly identical
state law). The pickets/protests are done by pro-abortion liberals/democrats to harass, threaten,
and intimidate such justices for voting to overturn Roe, to intimidate and threaten them into
upholding Roe, and to threaten and intimidate them in the discharge of their duties in court cases
they review that involve abortion. As such, it was and is done with intent to influence such
justices in the discharge of their duties and is a clear violation of 18 U.S.C. §1507.
1 The leaking of such opinion was an unethical and illegal act done by some Supreme Court official, possibly
even a liberal justice, and involved theft or unlawful disclosure of such record/draft opinion in violation of federal
criminal laws. See 18 U.S.C. §1641; 18 U.S.C. §1905; 18 U.S.C. §2071.
However, as indicated in the article, U.S. Attorney General (AG) Merrick Garland and
President Joseph Robinette Biden (both of whom are liberals/democrats and support unrestricted
abortion) have not arrested or prosecuted any of such liberal protestors for such crime, and
President Biden “has endorsed home protests for Justices” and thus incited and encouraged
protestors to violate 18 U.S.C. §1507. This led to a protestor attempting to assassinate Justice
Kavanaugh and his family and, as the article states, “[n]ot only did the illegal picketing resume
mere hours after the assassination attempt on Justice Kavanaugh, but reports are that those
seeking to intimidate the Justices at their homes plan to expand their campaign of harassment to
their children's schools.” Conservative senators wrote AG Garland asking why the Justice
Department “is not prosecuting the illegal protestors seeking to sway the Supreme Court's
decision on abortion.” A decision on whether or not to prosecute is very important in criminal
procedure and is an act of prosecutorial discretion, which this review focuses on.
Prosecutors are part of the executive branch, which “has exclusive authority and absolute
discretion to decide whether to prosecute a case.” U.S. v. Nixon, 418 U. S. 683, 693 (1974).
While prosecutors have great discretion in determining whether or not to prosecute, “an abuse of
that discretion [occurs when] the failure to prosecute others similarly situated was selective,
persistent, discriminatory and without justifiable prosecutorial discretion.” State v. Fleetwood,
1983 Wisc. App. LEXIS 3487, *11, 113 Wis. 2d 724, 334 N.W.2d 589 (Wis. Ct. App. 1983)
(bracketing supplied). “Under established separation of powers rules, absent evidence of
selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the
judiciary is powerless to interfere with the prosecutor's charging authority.” State v. Krotzer, 548
N.W.2d 252, 254 (Minnesota 1996)(citing Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978),
and Oyler v. Boles, 368 U.S. 448, 456 (1962)). Thus, the judiciary may only interfere with such
discretion when it is abused or manifests discrimination. “[T]he conscious exercise of some
selectivity in enforcement is not in itself a federal constitutional violation so long as the selection
was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary
classification.” Bordenkircher, 434 U.S. at 364 (internal quotation marks and brackets omitted).
Here, in my opinion and based on objective facts there is political discrimination by
Garland and Biden opposing conservatives (the Justices being protested are conservatives who
ruled against abortion) and favoring liberals (the protestors, who seek unrestricted abortion), and
such discrimination is the reason they are not prosecuting such protestors and violates First
Amendment free speech protections, and there is much evidence of such discrimination. 2
“[T]he president [and anyone in the executive branch] cannot…single out targets
of law enforcement for harassment or immunity based on their partisan leanings.
This type of partisan or political discrimination undermines political competition
by forcing the party out of power to devote resources to fend off prosecutions and
other enforcement actions based on behavior that is no different from that of the
2 For example, there are at least three significant categories of evidence of such political discrimination:
(a) prosecution of conservatives for conduct liberals are encouraged and allowed to engage in without being
prosecuted. While refusing to prosecute liberal protestors for crimes involving protesting in a federally prohibited
area (at or near the residences of the justices), Garland and the Biden administration are prosecuting conservatives
for protesting on January 6, 2021 in a federally prohibited area (the Capitol building);
(b) statements by Biden and Garland before and after the leaked opinion expressing intense political and personal
dislike of the conservative justices, and encouraging protests at their houses in violation of 18 U.S.C. §1507; and
(c) in March 2016, Garland, a longtime judge with strong desires to be a Supreme Court justice, was nominated by
President Barack Obama and supported by Biden to be a justice. However, it being an election year, Senate
Conservatives did not proceed on Garland’s nomination and later in 2016 President Donald Trump, a Conservative,
was elected and thereafter nominated three conservatives to the Supreme Court—Justice Gorsuch, Kavanaugh, and
Barrett—who were all confirmed by the Senate, while Garland’s nomination died. After the 2020 election, Biden
became president and appointed Garland as Attorney General. Now as AG, Garland may be delighting in this
hostility toward the conservative justices who displaced his nomination and deprived him of a coveted job. This
gives an appearance of a conflict of interest and personal bias as to why Garland is unwilling to prosecute the
protestors and unopposed to the hostility toward conservative justices who superseded and displaced him. With this
appearance of a strong conflict of interest existing, ethical rules require Garland recuse himself, but he has not done
so. Because Garland is unwilling to enforce law against his fellow liberals/Democrats (those protesting the
conservative justices) when they are clearly violating criminal law, he cannot be expected to interpret and apply law
fairly or impartially and was thus rightfully not appointed to the Supreme Court. Furthermore, both Garland and
Biden know if a conservative justice is murdered by a protestor, at this time in 2022 Biden can nominate a liberal to
replace such justice and the Senate, with a 50-50 split between conservatives and liberals and the tiebreaking vote
going to Vice President Kamala Harris (a liberal/democrat) who will vote to confirm such liberal nominee.
All of these things and others, in my opinion, are prima facie direct and circumstantial evidence of Biden and
Garland engaging in political viewpoint discrimination against conservatives and favoring liberals, and such is the
obvious basis for their failure to prosecute the liberals protesting at the houses of the conservative justices.
president's supporters - or, potentially, coerces opponents into silence so that they
can avoid the president's wrath.”
Daniel J. Hemel & Eric A. Posner, Presidential Obstruction of Justice, 106 Calif. L. Rev. 1277,
1315 (2018). Here, Garland and Biden are exercising prosecutorial discretion to immunize their
liberal supporters from prosecution for protesting, threatening, and trying to intimidate and harm
conservative justices regarded as political opponents and for blatant violations of 18 U.S.C.
§1507, and there is a blanket refusal to prosecute such liberal protestors violating such law. Such
blanket refusal to prosecute as such is an abuse of prosecutorial discretion. “[A] district attorney
may be found to have grossly abused his discretion for his blanket refusal to prosecute for
violations of a particular statute.” Commonwealth v. Muroski, 352 Pa. Super. 15, 33, 506 A.2d
1312, 1322 (Pa. Super. Ct. 1986)(dissent); Nader v. Saxbe, 497 F.2d 676, 679 (D.C.Cir.1974).
Moreover, such political viewpoint discrimination is an unconstitutional, illegal, and
“unjustifiable standard” and “arbitrary classification,” Bordenkircher, 434 U.S. at 364, and is
thus also an abuse of prosecutorial discretion. 3 “[T]he president acts improperly, and thus
corruptly, when he uses prosecutorial power to harass his political enemies while sparing his
friends.” Hemel & Posner, supra, 106 Calif. L. Rev. at 1315. This is a usage of prosecutorial
discretion to harass, threaten, and try to intimidate such justices (because they are regarded as
political opponents) by encouraging political supporters to protest at their houses in violation of
extant law and not prosecuting them for such, and to immunize such political supporters for
blatant violations of criminal law involving hostile protests toward such justices further incites
3 "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at all.” Berger v. U.S., 295 U.S.
78, 88 (1935). By immunizing liberals protesting at conservative justices’ homes in violation of 18 U.S.C. §1507,
Garland and Biden are not governing impartially or fairly and are denying such justices the equal protection of the
law in violation of their 14th Amendment rights, and are subverting congressional intent predicating 18 U.S.C. §1507
and the will of the people whose elected representatives enacted such law on behalf of the people.
hostility toward such justices by such political supporters. Such is an abuse of prosecutorial
discretion and manifests an impermissible discriminatory intent.
“[A] prosecutor will be compelled to prosecute only when the failure to prosecute
constitutes an abuse of discretion.” State ex rel. Whittaker v. Lucas Cty. Prosecutor's Office, 164
Ohio St. 3d 151, 153, 2021-Ohio-1241, P11, 172 N.E.3d 143, 145 (Ohio 2021). There are
abundant circumstances and evidence here indicating the failure of Garland and Biden to
prosecute such liberal protestors is an abuse of prosecutorial discretion and impermissibly
discriminatory, and such are sufficient for a court to compel Garland and Biden to prosecute such
liberal protestors. Ibid, Lucas Cty. Prosecutor’s Office; Krotzer, 548 N.W.2d at 254;
Bordenkircher, 434 U.S. at 364.
Selective and discriminatory enforcement of criminal law is very harmful to equal
protection under the law:
Does the prosecuting attorney have prosecutorial discretion where the proof of
guilt is beyond any doubt and can be proven? The question answers itself. Let us
suppose that a murder is committed in broad daylight, witnessed by many; that the
murderer is apprehended at the scene with a smoking revolver in his hand; that the
experts testify that the bullet which killed the victim came from the murderer's
gun, and that the evidence would further prove that the murderer did not have an
arguable defense. Can anyone rationally argue that the prosecuting attorney has
prosecutorial discretion to refuse to prosecute? *** Under such circumstances the
defendant does not even have an arguable defense. Should the prosecuting
attorney then have prosecutorial discretion to refuse to prosecute? ***The
prosecuting attorney does have prosecutorial discretion where the evidence…is
either difficult to prove or questionable[, b]ut where the proof is clear and
uncontradicted, it is an abuse of prosecutorial discretion not to prosecute. One of
the greatest discontents with the criminal justice system is that of selective law
enforcement. The citizens lose respect for the law and the criminal system
because they know that violations of the law will not result in sanctions and the
criminal law will affect only those who do not have status in society or be left to
the whim of a public official. It does great violence and gives lie to one of our
greatest concepts, "equal justice under the law," for under selective prosecution
there is no equal justice and some people are more equal or unequal than
others.*** It is argued that selective law enforcement is justified on the grounds
of practicality [and] that it is not practical to enforce the law because we do not
have the manpower or the money, or the institutions to incarcerate the guilty. We
justify selective law enforcement because we don't like a law or a violation of the
law is considered not too serious. But practicality does violence to equal
protection. [T]he failure of the criminal justice system and why it is held in
disrespect, is brought about by selective law enforcement, which in turn destroys
the citizens' faith in equal justice under the law and the certainty of punishment
for crimes.”
State v. Lee, 87 Wn.2d 932, 941-942, 558 P.2d 236, 242 (Wash. 1976)(Rosellini, J., dissenting)
(brackets, asterisks, and ellipses added). The proof of guilt here is beyond all doubt that such
protestors were and are violating 18 U.S.C. §1507, and our nation would do better in aspiring to
equal protection under the law if Garland and Biden would follow and enforce 18 U.S.C. §1507
against such liberal protestors, and it is their solemn duty to do so. See U.S. Const. art. II, §3.
In sum, in my opinion the failure to prosecute such liberal protestors is based on political
discrimination favoring such protestors and opposing conservative justices and manifests an
impermissible selective and discriminatory prosecutorial intent, is an abuse of prosecutorial
discretion, and denies such conservative justices their 14th Amendment rights to the equal
protection of the law by not enforcing 18 U.S.C. §1507 to protect them as intended by its terms
and enactment. In circumstances of such prosecutorial abuse of discretion, courts have power to
intervene to compel prosecutions. While prosecutorial discretion is an important part of criminal
procedure, it is not absolute and must be exercised within the constraints of the law. Moreover,
one must remember that a nation that does not follow God’s commands is doomed, and God has
commanded: “You must not pervert justice; you must not show partiality…, you are to judge
your neighbor fairly.” Leviticus 19:15 (Berean Study Bible). “You must not follow the crowd in
doing wrong. When you are called to testify in a dispute, do not be swayed by the crowd to twist
justice.” Exodus 23:2 (New Living Translation). Garland and Biden are both violating these
commands of God and showing no regard for God.
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