In a recent Sunday news show, NBC's David Gregory held up an empty ammunition clip to demonstrate to his guest, an NRA spokeman, the dangerousness of allowing people to possess a clip that can hold many (I think it was ten) bullets. As it happens, it was a clear violation of DC gun control law for Gregory to have the clip, empty or not. There ensued a heated debate about whether Gregory should have been prosecuted.
Many on the pro-Second Amendment side (a side I generally agree with) thought that he should have been charged. They mocked the gun control crowd's flaunting the laws they so eagerly foist off on others. They derisively noted that Gregory got a free pass from the DC Attorney General, Irv Nathan, wondering whether Nathan, the same sort of liberal Democrat that Gregory certainly seems to be, would have been similarly deferential to, say, a pro-gun rights TV talk show host on Fox News who held up the same ammo clip.
On the well-known conservative blog Legal Insurrection, I agreed that Nathan should have recused himself from the decision whether to prosecute Gregory. In my view, however, Nathan's substantive decision not to prosecute was correct. This provoked a firestorm of criticism from some of my fellow law-and-order conservatives. But, as I explain after the break, their criticism partakes of exactly the prosecution-as-politics ethos that, in the gun control debate as elsewhere, they correctly decry.
The decision whether to prosecute a citizen of the United States should not be about making a point or showing the world that the potential defendant and his political cohorts are hypocrites. The power of the state to imprison a particular person is too fearsome to allow an individual defendant to be swept up in the general, and quite heated, debate about gun control or other controversial laws.
A prosecutor needs to remember that his official function is to do justice in the individual case before him. Now what constitutes "justice" is not always so easy to discern, and that's what generates the heat. But in the Gregory case, the answer to that seemed pretty clear to me.
Would a normal person consider David Gregory a criminal? Would he be leary about having him as a next door neighbor? About allowing his kids to go trick-or-treating at his house? About leaving a valuable package outside where he could see it?
I doubt it. I've certainly seen no evidence of it.
Given that, and given that a prosecutor's office does not have the resources to take every case it could (or anything close to every case), a decision has to be made about which ones to prosecute and which to leave behind. That decision should rest principally on which cases will do the most to advance public saftey.
The idea that public safety would be advanced by putting Gregory in jail seems strained if not absurd. Thus, if one were to apply my proposed maximize-public-safety standard, the decision not to spend scarce tax dollars prosecuting Gregory seems correct, even simple.
The objection was simple too, however. "But what about the average Joe who would have been prosecuted? Is this fair to him? Isn't Gregory skating by just because he's a bigshot? Or, more specifically, just because he's a liberal media bigshot?"
There are two answers to this. First, it's far from clear to me that the average Joe would have been prosecuted for the specific behavior Gregory undertook. That is, while the average Joe might have been prosecuted for having an empty ammo clip in one bedside stand (and a revolver in the other), would he have been prosecuted for holding up the ammo clip while doing nothing more than debating his neighbor about gun control laws? I would be amenable to seeing hard evidence that he would have been, but I have no such evidence now.
Second and even more important, assuming arguendo that the average Joe would have been prosecuted in the those circumstances, does that mean that the law should compound its fecklessness or even perversity by repeating it? And should it do so by pushing aside the standard criterion (maximize public safety) for deciding when a potential defendant should become an actual defendant?
The place to address wrongheaded laws is not in some tiny prosecutor's office but in Congress. A potential defendant, be it Gregory or anyone else, is first and foremost a citizen of the United States. He is not a cipher in a national debate no matter how important that debate may be or how earnestly its partisans may feel about their views, or the hypocrisy and sleaziness of the other side's views. The answer is not to prosecute Gregory, but to think again about whether others similarly situated should be prosecuted.
It seems to me that what some of my fellow conservatives want to do here is make Gregory the scapegoat for liberal hypocrisy. He is certainly an inviting target given, among other things, his amazingly fawning interview with President Obama, in which he did everything but kiss the President's ring. But the impulse to hoist the other side on its own petard is just that -- an impulse. Impulsiveness and the delicious revenge that gives it its zest are tempting indeed. But impulsiveness and temptation are poor substitues for sobriety and restraint in wielding the power of the state. Conservatives and libertarians, above all others, should find this easy to remember.