After two years of observing the actions of the Biden administration with a growing sense of helplessness and outrage, House Republicans are finally in a position to effectually respond. Having assumed control of the House of Representatives, their investigations now leverage substantial resources and are backed by subpoena power. Fittingly, one of their first undertakings will be to scrutinize whether the federal government has infringed on Americans’ civil liberties. No doubt much of the focus will land on who did what and why. Both are worthy questions but preventing future abuses by the government against its citizens will also require addressing the how.
The weight of this heavy investigatory burden will fall primarily on the shoulders of Rep. Jim Jordan (R-OH) and his newly established Select Subcommittee on the Weaponization of the Federal Government. With outsized staff support and expanded access to classified information, this subcommittee has been charged with exposing instances when the power of the federal government was turned on its citizens without cause. Potential investigatory targets include the possible unwarranted use of FBI resources against parents and recent law enforcement actions against political targets (and a failure to pursue others).
If any of these allegations are proven by investigators, then those responsible must be held to account. Yet, Rep. Jordan also framed the Select Subcommittee’s intentions thusly, “we don’t want to go after anyone, we just want it to stop.”
The heart of the problem is that expansive criminal justice authorities make it too easy for a government agent with bad intentions to act on those intentions and to do so within the bounds of the law. The FBI can open an “assessment” (a precursor to a full-blown investigation) based solely on an agent’s assertion that they have an authorized purpose for doing so, such as trying to find federal crimes, with no “particular factual predication” required.
That’s an exceedingly low bar made all the more so by the fact that there are so many federal criminal penalties that the federal government itself has seemingly lost count. Even the most conscientious and law-abiding members of the public will struggle not to violate at least one—if only unintentionally. All that prevents an investigation or even an indictment for a misunderstanding is the roll of the dice that is law enforcement discretion.
This discretion is spread across a shocking number of people and agencies with little accountability around who is doing what and why. There are at least 137,000 federal law enforcement agents employed by over 94 different federal agencies, running the gamut from the Fish and Wildlife Service to the Secret Service. Americans would likely be harder pressed identifying a federal agency without arrest authority and a direct line to the Department of Justice.
When federal prosecutors are referred a matter, they can come after someone with all of the momentum of a locomotive. In 2019, nearly 75% of federal defendants were detained prior to trial and last year a whopping 98.3% of federal convictions came from guilty pleas, a stunning display of prosecutorial power. The fact of the matter is that once someone’s in prosecutors’ crosshairs, few avoid injury.
Even in investigations that don’t pan out or cases that never make it into the light of day, damage can still be done. Like a wily Mafia don, the government doesn’t always need to officially order anything to get others to alter their behavior in accordance with its wishes. Simply knowing the government might be watching can be all it takes to chill speech and curb civil liberties, let alone the response garnered by having an armed representative show up on someone’s doorstep, even for a “friendly” conversation.
Identifying instances in which federal officials leveraged criminal justice authorities to violate Americans’ civil liberties and holding them responsible is undoubtedly important. Yet, if Congress contents itself with pursuing only those who might be abusing their office without considering and reforming the broader systemic issues that allowed them to do so, it will be akin to arresting the criminal while leaving the weapon on the street. Sure, if we’re lucky the next person to come along won’t pick it up or, at least, will use it more judiciously. But why take that chance?