In America, Anyone Can Be a Felon

"To paraphrase Orwell, insincerity is the enemy of clarity. When there is a gap between one's real and declared aims, one often turns to cliches like a cuttlefish spurting ink.

At the moment no bromide spurts insincerity like "no one is above the law." The slogan manages to be both meaningless and inspirational, but it says nothing useful about people or the law. Anyone uttering it should be forced to submit his laptop and smartphone to the authorities to search for evidence of crimes.

What crimes? Take your pick. According to a study from the Heritage Foundation, 1,510 federal statutes created at least one crime as of 2019. They contain sections and subsections so complex that the authors had to develop an algorithm to count the estimated 5,199 crimes then in the U.S. Code. According to the legal scholar Douglas Husak, another 300,000 or so regulations may be enforceable by way of criminal punishment at the discretion of an administrative agency. That's only federal law. Each state has its own penal code. New York's describes at least 575 crimes, from abandonment of a child to welfare fraud in the third degree. Many of these crimes apply to conduct no rational person would expect to be a crime.

Many cuttlefish commentators spurting that "no one is above the law" would insist their laptops and smartphones contain no evidence of serious crimes like falsifying business records. Really? How about felony drug diversion for borrowing a Valium from somebody else? How about the overly high estimate provided to the Internal Revenue Service on the clothes and furniture donated to Goodwill? Tax fraud anyone? Let's hope none of those laptops contain an application for a home-equity loan in which the borrower overstated the value of his residence. That's bank fraud. If the loan application was emailed to the bank, that's mail fraud. If the back-and-forth between the borrower and loan officers amounts to 34 emails, that's 34 counts of mail fraud.

With state and federal criminal laws as limitless as the stars in the heavens, about the worst thing a prosecutor can do, other than taking bribes, is prosecute people instead of crimes. In states like New York where prosecutors are elected, they are supposed to run for office by promising to stop carjackings or put meth dealers in prison.

When a prosecutor instead says, "Vote for me, I'll find a way to get Mr. X," he's abusing his power. It means vote for me and I'll examine every email or statement Mr. X has ever made. I'll subpoena his laptop and smartphone and I'll have a team of lawyers and algorithms search the criminal codes until I find a way to get him. 

Who wants to live under such a regime?

Before the 2016 election, FBI Director James Comey held a press conference explaining why his office was recommending that prosecutors not bring charges against Hillary Clinton for mishandling classified information. "Although there is evidence of potential violations regarding the handling of classified information," Mr. Comey said, "our judgment is that no reasonable prosecutor would bring such a case."

These days we are forced to ask: Yes, but what about unreasonable prosecutors?

---

Mr. Dooling is a novelist and retired lawyer." [1]

Outdated lawmaking and computerized searches transfer too much of the harmful to society power to unwise prosecutors. Time to rebuild the system.

1. In America, Anyone Can Be a Felon. Dooling, Richard.  Wall Street Journal, Eastern edition; New York, N.Y.. 04 June 2024: A.17.