The Wise Use of Prosecutorial Discretion, Expressed in a Single Sentence

By Dan Cadman on May 11, 2016

Yesterday I wrote about a Department of Justice (DOJ) report on the history and development of the Office of Special Investigations, a small unit charged with hunting down Nazis and other war criminals from World War II.

I said that I'd found, embedded within the manuscript's pages, lessons still important for today's world, and went on to relate the parallels between the processing of displaced persons in the post-war era and the processing of Syrians, Iraqis, and persons from other war-torn nations today — processing as replete with risks now as it was then because of the high probability of making mistakes and granting refuge or asylum to persecutors, genocidists, or even Islamic terrorists bent on further mayhem after being "resettled".

But that was not the only lesson to be found in the DOJ report. Page 112 contains this jewel within the chapter on the case file involving Jacob Tannenbaum, a Jewish concentration camp detainee who acted as a kapo overseeing other concentration camp victims for the Germans:

The settlement called for Tannenbaum to agree to denaturalization based on his having participated in persecution "by brutalizing and physically abusing prisoners outside the presence of German SS personnel." The government agreed not to institute deportation proceedings unless Tannenbaum's health — which the government was to monitor — improved.


Tannenbaum was not the first to have what amounted to a medical deferment, although OSI used the procedure sparingly. As DAAG [Deputy Assistant Attorney General] Richard saw it, the government "should not use [its] prosecutorial discretion to undercut the congressional decision to deny [Nazi persecutors] waivers on deportability. [emphasis added]


The wisdom expressed in that one sentence by a senior career figure at DOJ contrasts strongly with the sadly politicized Justice Department of this administration, a lap dog that has scrambled to create a Potemkin Village of words to justify programs now before the Supreme Court that have permitted hundreds of thousands of illegal aliens to evade removal under the guise of "prosecutorial discretion".

The Obama White House, aided and abetted by Attorneys General Eric Holder and Loretta Lynch, has disgracefully taken the concept of prosecutorial discretion — to be used sparingly, as an act of ministerial grace — and turned it on its head in order to flout the law, undo immigration enforcement, and unconstitutionally infringe on the legislative powers of Congress (see here, here, and here).

We cannot be shed of this eight years soon enough; let's hope that the future does not bode four more years of the same or worse — the country cannot sustain it.