Outside the Beltway

Andrew Sullivan and the Rule of Law

James Joyner · Friday, September 11, 2009 · 10 comments

Jonathan Last has somehow obtained a memorandum [PDF], dated yesterday, written by U.S. Magistrate Judge Robert B. Collings in the matter of Andrew  Sullivan, who was caught in a federal park with small amounts of a controlled substance but whom the U.S. Attorney declined to prosecute in the “interests of justice.” To wit: Paying the $125 fine would make it harder to conceal from immigration officials that he had been charged with said crime.

Says Collings:

In the Court’s view, in seeking leave to dismiss the charge against Mr. Sullivan, the United States Attorney is not being faithful to a cardinal principle of our legal system, i.e., that all persons stand equal before the law and are to be treated equally in a court of justice once judicial processes are invoked. It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances.

He says much more but that’s the gist. Last adds:

Sullivan and his attorney claim that paying the $125 fine would create a record of his being charged with possession of a controlled substance. Collings notes that whether or not Sullivan ever paid the fine, “if asked by immigration authorities, [he] would have to answer truthfully that he had been charged with a crime involving controlled substances.” So why would it matter whether or not Sullivan just pays the $125? Because if he doesn’t pay it, it makes it easier for him to answer untruthfully.

In other words, the State decided that it was in the interest of justice to help Andrew Sullivan lie to another agency of the State.

Look, if Sullivan’s able to beat a minor charge, good for him. (Though can you imagine what he would say if the defendant was a guy named “Bush”?) There’s no reason he shouldn’t defend himself as zealously as possible. As always, the problem is the shame and dishonor he brings on a larger institution, in this case, the U.S. Attorney’s Office.

Commenter “Z” piles on:

(1) Given that there is strong evidence that Sullivan violated federal law, doesn’t the rule of law require that he be prosecuted? That is (as he proudly quoted only a few days ago), “if you genuinely believe in the rule of law, you can’t invoke political expediency as a guide to whether possible crimes should be investigated and prosecuted.” Right?

(2) Given that the U.S. Department of Justice has provided Sullivan with a substantial benefit, shouldn’t he recuse himself from any and all commentary on the Department of Justice? Or do those sorts of rules apply only to journalists with allegedly pro-Palin conflicts of interest?

Ouch! Touché! Zing!

As to the issue of Sully’s hypocrisy, it’s rather slight.  That he argues that the Bush administration should be held accountable for abiding by international treaty, federal statute, and executive orders on torture does not obligate him to demand the enforcement of the letter of every other law.  Further, he has been forthright — indeed, to the point of zealously beating his readers around the head with a dead horse — about his disdain for our drug laws and, especially, the benefits of using marijuana.  And asking Greta van Susteren to disclose that her husband is on Sarah Palin’s payroll is not exactly unreasonable, let alone applicable to his own commentary on the DoJ.

As to the disposition of the matter, I generally agree with Collings:  Either we prosecute people for possessing small amounts of marijuana in federal parks or we don’t.  It’s odd, indeed, to have an exception to the rule that we arrest citizens for such infractions but not non-citizens applying for citizenship.   But, on occasion, the law is an ass.  In this particular case, the penalty for an infraction so slight that we ordinarily punish it with less vigor than going 12 miles over the posted limit on the interstate would effectively be deportation.  It’s not unreasonable for a U.S. Attorney to weigh the likely result of prosecution and decide that, in this highly unusual instance, the impact would be unjust.

Via Jayvie Canono, who I gather disagrees.

UPDATE: This story has gone viral in the blogosphere, which isn’t surprising given that arguably the most famous blogger is at the center of the story.

Stacy McCain jokes, “Forget about the Mexican drug cartels — save us from the AIDS-Infected British Dope Menace!”  He adds, “As a former teenage hoodlum who used to deal dope in felony weights, allow me to offer my Darwinian/draconian case for strict enforcement: Anybody stupid enough to get busted for dope is a danger to himself and others and should be locked up for the good of society.”

Ace works a “wee weed up” reference into the title and implies that Sullivan’s having “had a personal meeting with Obama, with other leftist bloggers” figured into this dismissal, despite noting that it was a careerist in the U.S. Attorney’s office, not an Obama appointee, who made the call.

Dan Collins questions the timing.

JammieWearingFool snarks, “Sounds like grounds for deportation to me. Otherwise people may get the impression there are two Americas. One for us regular folk and another for whacked-out conspiratorial bloggers.”

Damien Penny suggests “The past 18 months or so illustrate why one shouldn’t toke and blog, man.”

Jacob Sullum agrees with me on the hypocrisy angle but laments the degree to which the rich and connected can get special treatment in drug cases.

Glenn Reynolds supports legalization but guesses “Andrew would no doubt make a big deal out of any special treatment afforded to a member of the Palin family under similar circumstances.”

Stephen Green is just generally amused.