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Prosecutorial Discretion: Plenty for Me; But None for Thee

Republican “strategists,” Party functionaries, and Congresspeople, are saying, with considerable emotion and rage, that the President’s Executive Order allowing undocumented immigrants goes beyond presidential authority under the Constitution in the areas of law enforcement and prosecutorial discretion, claiming that he must enforce the law without bias, in a manner consistent with his oath to uphold the Constitution. They’ve made similar claims in relation to his decision to delay for one year the requirement that employers with over 50 employees provide health care coverage or pay penalties, and have now gone to court to get relief from this “horrible” action relieving the financial burden on one of the Republicans supposed favorite constituencies, non-small businesses.

On the other hand, the President’s unwillingness to investigate, prosecute and seek convictions against:

— banksters, Wall Street, and related company executives, for frauds, such as “liar’s loans”, and frauds in derivative sales, connected to the crash of 2008, and for those continuing even today, especially in the area of mortgage foreclosures where, evidently, robo- signing is still alive and well;

— torturers, whose rear-ends the Administration is still actively trying to protect by opposing the release of the Senate’s Report US involvement in torture activities;

— Intelligence community functionaries or former functionaries who have been caught in lies to Congress;

— Intelligence community operatives and functionaries who violate constitutional rights of privacy and laws prohibiting dragnet surveillance and searches among people;

— Police who systematically violate civil liberties and civil rights with impunity across the country; and

— Government Senior Executive Service officials and Civil Servants at the IRS who do not prosecute for perjury, so-called section 501(c)(4) social welfare organizations that are plainly political organizations, because they perform very little or any “social welfare” activities at all, while tax legislation, if not the enforcment code, plainly uses the word “exclusively” with respect to such activities when defining the category of social welfare organizations;

bothers these same Republicans, and many Democrats too, not at all.

Did I forget something? Anyway, it’s plain to any sentient observer that both this Administration, and any others you care to name, have habitually targeted certain crimes and criminals and let others off the hook, based on executive choices and prosecutorial discretion.

However, targeting and prioritization in prosecutorial discretion is supposed to be based on resource limitations, and getting maximum law enforcement impact out of existing resources. But, now decisions to investigate and prosecute, seem biased according to economic status, political criteria, and involvement of authorities. The guiding principle seems to be to enforce when it will repress and punish the have-nots, and to ignore, when that will benefit the haves, especially the 1%.

A subsidiary principle seems to be to avoid punishing have-nots, like police, when they commit crimes in the process of repressing other have-nots, because doing that is important for maintaining “law and order,” which, in turn, is really, really, important for ensuring that the haves will not be molested by the have-nots, should they decide to retaliate against the haves for the periodic looting of the have-nots the haves periodically indulge in without legal consequences.

So, the President got so many Republicans angry at him two days ago, because he was using prosecutorial discretion to benefit have-nots, namely oppressed immigrants, rather than to benefit the haves and those protecting them. But I don’t believe for a minute that their rage and irate language was due to some deep desire for equal justice under the law. Because, if that were true then why is it that our jails aren’t filled with banksters, fraudsters, torturers, intelligence officials, police who murder and brutalize people, and IRS officials who won’t enforce the law that says that 501 c (4) social welfare organizations must be engaged exclusively in social welfare activities?

(Cross-posted from New Economic Perspectives.)

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Joseph M. Firestone, Ph.D. is Managing Director, CEO of the Knowledge Management Consortium International (KMCI), and Director and co-Instructor of KMCI’s CKIM Certificate program, as well as Director of KMCI’s synchronous, real-time Distance Learning Program. He is also CKO of Executive Information Systems, Inc. a Knowledge and Information Management Consultancy.

Joe is author or co-author of more than 150 articles, white papers, and reports, as well as the following book-length publications: Knowledge Management and Risk Management; A Business Fable, UK: Ark Group, 2008, Risk Intelligence Metrics: An Adaptive Metrics Center Industry Report, Wilmington, DE: KMCI Online Press, 2006, “Has Knowledge management been Done,” Special Issue of The Learning Organization: An International Journal, 12, no. 2, April, 2005, Enterprise Information Portals and Knowledge Management, Burlington, MA: KMCI Press/Butterworth-Heinemann, 2003; Key Issues in The New Knowledge Management, Burlington, MA: KMCI Press/Butterworth-Heinemann, 2003, and Excerpt # 1 from The Open Enterprise, Wilmington, DE: KMCI Online Press, 2003.

Joe is also developer of the web sites,,, and the blog “All Life is Problem Solving” at, and He has taught Political Science at the Graduate and Undergraduate Levels, and has a BA from Cornell University in Government, and MA and Ph.D. degrees in Comparative Politics and International Relations from Michigan State University.