Bill Otis (Ringside at the Reckoning) on the SPLC Indictment

Among other things, Otis responds to my post from yesterday; an excerpt:

The main criterion in a democratic system is not whether a given prosecution is common, but whether in this particular case fairly evaluated, the facts could be viewed by a reasonable jury as establishing the prospective defendant’s guilt beyond a reasonable doubt. For one thing, adopting the “common prosecution” criterion leaves open many of the problems it’s supposed to solve. How “common” is common enough to be confident the case isn’t merely political? Will that get decided by the line prosecutors — careerists (or, less generously, bureaucrats) or their more accountable (but also more political) superiors?

More importantly, to focus on commonality system-wide is to risk losing focus on why we have a criminal justice system to begin with, namely, to hold wrongdoers to account and give justice to their victims. Contrary to some of my liberal and libertarian friends, I do not see “the system” as being perpetually on trial. Its balance and fair-mindedness are, to be sure, “on trial” before the legislature, which properly has the power to address systemic problems, such as they may appear to be. But they are not on trial in deciding whether Mr. Smith or Mr. Jones from the SPLC fleeced any given contributor by giving him a song-and-dance rendition of what his money would be used for.

The flaw in Prof. Volokh’s second criterion (whether the SPLC’s fundraising actually was fraudulent) is that this is simply a question of fact for the jury to decide. It goes to the strength of the case, not its legitimacy….

The SPLC indictment does raise non-trivial questions about weaponization of law and the boundaries of prosecutorial discretion, but in my view, having been a federal prosecutor under administrations of both parties, falls inside those boundaries.