Tag Archives: law


Prosecutorial discretion can be a complicated thing. It can get really complicated when the suspect is a person by the name of Donald Trump.

In the wake of Trump’s Impeachment trial, state and federal prosecutors are now in the spotlight. They need to weigh all kinds of factors, including the nature and gravity of the offenses, and various policy considerations. Prosecutors decide whether charges should be filed and what particular charges should be included. Once charges are filed, there are myriad discretionary decisions that will be made about how to conduct the case.

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Today, the Senate failed to convict him of the Impeachment charge, but Donald Trump is still suspected of committing a wide range of criminal offenses, from Tax Fraud, to Conspiracy to Interfere with an Election, to Seditious Conspiracy Against the United States, and even aiding and abetting the Murder of a Capitol Hill police officer. So he is still subject to criminal prosecution in the courts, and the crimes themselves are about as serious as serious gets.

Mitigating circumstances? It is hard to imagine that Donald Trump, rich, powerful, Commander-in-Chief, had any mitigating excuses for these crimes that are under investigation.

How about policy considerations. This is where it gets really complicated. At first glance, that is. Prosecutors have the simultaneous duties to enforce the criminal laws and see that justice is done. But they have the inherent discretion to take other factors into account. So, when Donald Trump is the potential criminal defendant, the policy factors they need to take into account have national and international significance. On the one hand, they might worry that trying Donald Trump for serious crimes could cause a violent backlash. They might conclude that prosecuting him would somehow lead to more human suffering than it would prevent.

On the other hand, they must consider what effect it would have if Trump were never held accountable, what would that do to our principle that no one is above the law. How would such impunity affect our democracy, how might it embolden other would-be tyrants? How would it influence the opinions or actions of other nations? If Trump is able to escape justice through his personal status or his connections, could it have possibly devastating effects on our nation’s morale? Our country is already suffering from inequalities based on race, religion, gender, and other social factors.

If Trump evades prosecution and punishment, will he not continue to pose a threat to our democratic political system, and to our national security? Those are concerns which the House Impeachment Managers emphasized zealously.

Can Donald Trump get a fair trial in the criminal courts? That is a policy question that has to be looked at as well. But the Courts provide due process, including procedures for selecting an appropriate venue and a fair jury. He will enjoy all the constitutional rights of any criminal defendant.

Finally, prosecutors can and should consider humanitarian factors. Has the suspect already suffered enough? Is he remorseful, has he demonstrated that he is motivated to atone for his crimes, to repay society for the harm he has done? Is he using his words, actions, or resources to make the world a better, safer place? Did he appear at his Impeachment trial and admit what he had done and show that he has learned from his mistakes? Were there ever questions that deserved a more resounding “No” than these crucial questions in the context of Donald Trump’s behavior?

Prosecutors will have to make their own discretionary choices. We hope that they will exercise their authority wisely. It is not easy being a prosecutor and figuring out what is the right thing to do, in every case. I don’t envy them dealing with the pressure of having to sort out all the positives and negatives of prosecuting Donald Trump. But I think we will see them do the right thing. I think we will see some degree of justice achieved. That is an achievement that all rational Americans should desire and support. And rational thinking is what this country needs right now, more than anything, from all its citizens.

I hope Thurgood Marshall would have agreed . . .


Our criminal laws are found in statutes and court decisions, and they generally reflect our shared societal values. But they are often applied or enforced unfairly or unequally.

Assault, battery and other acts of violence are crimes, whether you’re in law enforcement or just a private individual. If you are defending yourself or others from harm, you are allowed to use reasonable force. You cannot use excessive force and if you do you are guilty of a crime of violence. These concepts are extremely complicated in real life. They get especially complicated in situations like arrests or detentions. There are whole sets of laws dealing with things like resisting arrest. Do not assume that you know what is reasonable and what is excessive. This applies to both police and private individuals. You may think something is reasonable but you could be wrong, under the law. Think with your head, not  your gut.

The fundamental truth is that violence is violence and people get hurt and there is no excuse for any of that.

Sleepless in San Ysidro

If only I could sleep. Tomorrow is too important. That’s why I can’t sleep. If I’m too tired tomorrow how can I be strong for myself and for my kids. By tomorrow this time where will I be, where will my children be? I don’t want to think about it. But I can’t help it. I can’t help thinking that I have done this to my children. That I have put them through so much danger, that I don’t know what kind of dangers are ahead for them. What will happen if we are separated? How can they speak for themselves, they don’t know English, not enough to explain our situation. Neither do I, but at least if we were together—

Look at the way Antonio is sleeping, hugging his backpack like it was his old stuffed dinosaur. Jacklyn, thank god, she’s asleep, poor thing. I hope she doesn’t remember that nightmare when she wakes up. But how will she ever lose the memory of what happened to her after we left Durango. Molested by that gang member who carried drugs, while I was throwing up in the brush from the bad food. Her clothes torn and she had thrown up, too, from the things that monster did to her. Even now, look at the way that man sleeping near her keeps inching closer every time he turns over. In a minute I am going to wake her and trade places with her. She didn’t deserve any of this cruelty.

I really wish to god I had turned back before we got to the border of Mexico. But the farther we went the harder it was to turn back. How can I ever forget this living nightmare? This thing I have done, listening to false promises and lies and giving all our money to these bastard smugglers, these “coyotes”, who tell you they will keep you safe and get you to the U.S. and you will have a job there and a place to live. I was a fool, just like all these other people. And now look what I’ve done to my children. I suppose that’s the real reason why I can’t sleep.

Robbed twice, then arrested by Mexican immigration, they separated me and my children for two days. Then they finally let us go and told us not to stop until we reach the U.S. border. I was almost raped by that bastard smuggler but those two men from my country were nearby and saw I was in trouble and scared him off.

I miss the baby so much. But how could I bring her? You can’t take a three year old on this kind of travel. Some people do, but—. Will I ever see her again? Will I ever see Grandma? Sometimes I wonder if I ever really will.

In the morning I have to be sure the children remember those two words: Asilo Politico. The coyotes tell us that the Americans have nice hotels for families like us, we will get our own room, food, everything we need while they listen to our case. I don’t really believe any of that. I don’t know where they will put us. I don’t know if they will take my children from me. But I know they will not harm my children, they have compassion, they will give them plenty of food and a safe place to sleep with other children. Maybe they will let me visit them. That is all I care about. Maybe I will be able to sleep at night then. If I could only sleep now. But first I must move Jacklyn to the middle, between me and Antonio. I don’t want to wake him. He needs these few hours of peace. Before tomorrow comes.

No such law

I’ve been away from immigration law for six months now, but I can tell you this: There is no law that requires undocumented children and parents to be separated. If there were such an absurd law, you would have known about it long ago. Family unity is a fundamental principle of our immigration laws. You find it written into all aspects of our laws.

There are various laws and regulations that require certain removable aliens to be detained. Some criminals and those who pose a terrorist or security threat must be detained. Others may be detained or have a reasonable bond set if they are a danger to the community and/or are a flight risk. A lack of strong ties to the U.S. or the lack of any legally valid basis for remaining here generally indicate that the individual may be a flight risk.

If a parent is detained for one of the above reasons, then obviously the child cannot be kept with the parent in an adult detention facility and must be placed elsewhere. Undocumented children are not kept in immigration jails. Under the Flores v. Reno class action settlement, such children must be placed in the “least restrictive” setting appropriate to their age and needs. This might be a licensed group home or foster home, if no other relative is available. They go to school, receive medical care, counseling, etc.

Homeland Security has built family detention centers with family living units, but there are tens of thousands more families than can be accommodated. And other class action lawsuits have caused some of these centers to be shut down.

Family separations are thus an unfortunate, albeit temporary, situation that comes with immigration enforcement. Such separation should never be used as a deliberate policy.