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Criminalization of Policy Differences

Mark Helprin.jpgAuthor Mark Helprin (a onetime fellow of Discovery Institute) long ago coined the term "criminalization of policy differences" to describe the tactic of finding legal grounds for suing--and therefore helping handicap--political opponents. For some reason, Democrats seem to employ the tactic most often. Today, of course, we are seeing it in in Travis County (Austin)--where, to borrow an old saying about prosecutors' influence on the grand juries they call--even a ham sandwich could be indicted. Governor Rick Perry is planning to run for president, so what better way to slow him down than to indict him on some bogus charge? Perry is right to be indignant. He'll win, but the legal process could well drag on for years, especially if the case is heard initially by Democratic judges. The beginning of the race for President, 2016 cycle, is only months away.

Political candidates cannot usually stand to operate under indictment. Consider Rep. Tom DeLay. His problem in politics was that he played hardball and helped defeat Democrats, both in Congressional legislation and at the ballot box. But the proper way to deal with someone like that--assuming you dislike him and his stands--is through traditional politics, not criminal legal cases. DeLay won, of course, but it took years and he had to leave Congress to defend himself--which constituted the victory his opponents were hoping for, after all. So the lawsuit tactic sometimes works.

It has not worked with Gov. Scott Walker of Wisconsin, though the prosecutor's office in Milwaukee seems unable to let go.

So, if it works, the tactic will be used repeatedly, the way it is in Putin's Russia, Kirchener's Argentina, Maduro's Venezuela and many other authoritarian regimes. What is it is not is the mark of a republican form of government with checks and balances.

There is a cure: expedited judicial review at a high level, with fines for prosecutorial malice. That was what happened to the reckless indictment and trial of Sen. Ted Stevens. The powerful Republican senator was vindicated, though only after his death. At least the public could appreciate the justice of his prosecutors facing punishment for legal abuse.

There is another cure, one that Perry is likely to apply: make the indictment the linchpin of an political attack on the whole issue of criminalization of policy differences. It does not just happen in Texas or only at the state level. In other words, Gov. Perry may have found another campaign issue, and one around which many constitutionally minded citizens will rally.

You can email brucechapman@discovery.org

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