Tuesday, August 09, 2016

Harry gives 'em hell

The investigation into the police officer involved shooting of Philando Castile last month is about to begin. As such, Ramsey County Attorney John Choi has selected local attorney Don Lewis to conduct said investigation.

My friend and great legal mind Harry Niska took issue with the Star Tribune Editorial Board piece endorsing Choi's decision to forgo an independent prosecutor, more specifically on how it's a microcosm of what's occurring nationwide.

(A recent) Star Tribune editorial on John Choi's decision not to appoint an independent special prosecutor is emblematic of a larger problem in our country. We have a hard time discussing structural protections against government abuse of power without bias based on whether we like those exercising power. The editorial board entirely brushes aside any questions about ideal structure, based on its assurance that John Choi (with Don Lewis) will exercise his power well.

That approach is typical of the way we debate government power in this country. Democrats tended to be outraged by executive and federal overreach in the Bush administration, but less so when the power of the Presidency was being wielded in favor of policies they preferred. And the inverse, unfortunately, was true for many Republicans. Now many Democrats are horrified by the idea of Donald Trump wielding the power of the Presidency, without expressing any inclination to limit that power if it is exercised by Barack Obama or Hillary Clinton.

That is the wrong way to discuss such questions, and it undermines the legal principles that have made America great. Our Constitution has survived for over 200 years because it created guardrails and checks on government power, regardless of the wisdom, views, or character of those exercising power.

So, while I agree with the Star Tribune's assessment of Choi and Lewis's professionalism, that should not be the deciding factor in deciding how an investigation like the Philando Castille case should be handled. Instead, we ought to discuss the most prudent general structure, independent of the personalities involved.

As I said on July 7, I believe a special prosecutor under the authority of the Minnesota Attorney General would be prudent in this case and similar officer-involved shootings, because investigating a police department it must work with puts any county attorney in an unfair position ( see thread here: https://twitter.com/HarryNiska/status/751152832137433088 ).

I agree with the Star Tribune editorial board that it is important that the ultimate charging decision be made by someone accountable to voters, so I believe the Attorney General should stand behind it, just as Choi is (admirably) doing here. I say this even though I believe John Choi has generally performed his job better than Lori Swanson has, because we need to determine best structures for government independent of who currently holds each office.

This is an important principle with implications beyond Ramsey County. We are heading into a presidential campaign between two candidates who have shown every indication that they view themselves to be above the law, including constitutional constraints on the power of the presidency.

No matter who wins the presidency, it is imperative that a broad movement of Americans stand for the rule of law. This movement must transcend political party, it must transcend policy views, and it must transcend our assessment of the current occupant of any political office.

Come November I may or may not write in Harry's name when casting my vote for MN Supreme Court Associate Justice. But knowing Harry like I do, he would likely reply in the motif of William Tecumseh Sherman.


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