American philosopher Henry David Thoreau said that for every person hacking at the leaves of evil, there is only one striking at the root.” What is the root of government’s ability to attack your rights as an innocent person? It’s a lack of accountability—no one is looking over the government’s shoulder. We must fix that and I want to strike at the root of unaccountable government power. Former United States Supreme Court Justice and United States Attorney General Robert Jackson said in training a group of United States Attorneys:

The prosecutor has more control over life, liberty, and reputation than any other person in America. (Justice Robert H. Jackson, US Attorney General, Justice, US Supreme Court, April 1, 1949, emphasis supplied).

Just let that statement sink in. He is not speaking of the President, a Governor, a United States Senator or a Supreme Court Justice. He’s talking about the prosecutor. He added:

His discretion is tremendous. He can have citizens investigated...The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.

Investigated, arrested, indicted and held for trial! Relative to your rights, can there be a greater risk? Was his description of the unaccountable power of a prosecutor overstated? Barely a month ago a small team of prosecutors working for the Department of Justice provided a sentencing recommendation to a federal court. US Attorney General William Barr ordered a review of that recommendation--in other words, a check and balance. His decision to review his own subordinates ignited a firestorm where 2,000 former DOJ employees called for Mr. Barr’s immediate resignation for having the audacity to hold line prosecutors accountable. Is anyone else surprised that so many former DOJ employees, well versed in “how things are,” were so protective of the “independence” of line prosecutors? Yet, today that is where we are. When it comes to our rights, even prosecutors, and I would say, especially prosecutors, must be carefully watched--held accountable--in the exercise of their potentially debilitating power. Otherwise, the system that has so much power to destroy a life is ripe for political abuse and is imminently corruptible.

The Root Principles of the Solution

So what can be done? The answer lies in more robust systems of accountability. The framers of the American government knew that no one individual should hold the master key to your rights. They designed a system so that no one would have to rely on the character of an office holder for protection against tyranny. But things have changed today. In a country that was founded on the principle that none should have dictatorial power, there are unjustifiably few checks on a government agency or on the prosecutor and his charging decision. Who can you turn to when an agency of the state comes after your business or after a member of your family when there is a clear, ulterior motive? What agency head is not so invested in employees that she would even take seriously a claim of abuse or corruption? Relative to investigative or prosecution power, how did we allow unlimited, virtually unchecked prosecution power to the one office that could cause the most injury to individual rights?

Justice Jackson confirmed this challenge:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.   

He adds:

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  

He finishes:

It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

Shiver with me for just a moment at that last phrase. Protection from being persecuted by the predominant or governing group is what drove many of our ancestors, the Utah pioneers, to leave their homes and cross a bitter plain of trial and death, to a land of freedom “far away in the west.” I have such ancestors on both sides of my line and one of them, Ezra Benson, has his name engraved on a plaque on Ensign Peak. Can we not presume that the human tendencies connecting absolute power and its abuse are any less prevalent today than they were 170 years ago in Missouri and Illinois?

While prosecuting crime is crucial, society is shaken without unbiased justice. We must reasonably balance government and individual rights. And if a false and distorted prosecution could happen to me, a former attorney general, it could literally happen to anyone, especially the person who stands up to be heard, who is willing to disrupt, or who is ready to lead—the true difference-maker. God help us if our flawed system discourages good leaders from making a vocal contribution today of all times, out of fear of an arbitrary and unjust government action.