Op-Ed: The Constitutional Prosecutor

A prosecutor cannot treat people differently based on whether or not the prosecutor agrees with their opinions. To do so is inconsistent with basic principles of our Constitution. This is called "viewpoint discrimination." Recent events have got me thinking about this and the solemn duty of all actors of government. Although I cannot discuss specific cases my office is prosecuting, a recent incident has made apparent the need for a greater conversation around the Constitution, a sacred document to our country and one I swore an oath to uphold.

If protestors at an abortion clinic blocked the entrance, violating state trespass laws, a prosecutor must treat them the same way they would protestors protesting for a cause the prosecutor agreed with. Importantly, no prosecutor should use their prosecutorial discretion to invent false reasons to disguise viewpoint discrimination, such as inventing concerns about a burden on resources. In fact, the resources required to charge misdemeanor trespass cases in a state where 20% of all misdemeanors go through a court diversion program is very small. The law calls using false reasons like this "pretext," and it doesn't let you off the hook from abiding by the Constitution.

Our country has seen the Trump Administration routinely treat differently under the law people who share the views of the President. Along with most people, I have found this disturbing and anathema to the core of our justice system and democracy. Vermont is not a place where such a biased approach should ever be adopted. The awesome power afforded the government should never be abused to reward those with whom we agree and punish those with whom we differ.

Given my work standing up to the Trump Administration, some Vermonters have expressed confusion: How can the Attorney General who sued the Trump Administration 70 times prosecute protestors protesting the Trump Administration, even if their actions while protesting were deemed illegal? My guide for both is one and the same: The Constitution. I will never play politics with the Constitution. Even when I agree that the Trump Administration deserves our condemnation, or the actions of a federal agency deserve strong public outcry, I cannot ignore the mandate of the Constitution that all people be treated equally under the law. Justice must be blind or our system will fail.

I share the dismay and disgust of many Vermonters at ICE terrorizing our communities. I myself have protested at an ICE facility in Williston, albeit legally by doing so on public property, and I have stood up repeatedly with my colleagues from other states in courts across the country in opposing ICE's cruel and unlawful policies. But, despite my strong feelings of condemnation over the actions of ICE, I will never brush aside my obligation to follow the Constitution.