Biden's Justice Department is refusing to take enforcement action against radical leftists who have been conducting demonstrations at the homes of Supreme Court justices, blatantly seeking to intimidate and influence the Court while it has the Dobbs abortion case under consideration.

Federal penal statute, Section 1507, unambiguously criminalizes this behavior. I’ve heard some suggestion in the commentary in recent days that Section 1507 may violate free-speech principles. It doesn’t.

Do we really want to get into an escalating contest of who can better intimidate the other side’s judges and officeholders?

The First Amendment has always permitted reasonable time, place, and manner restrictions. The degree of permissible restrictiveness is heightened as the government’s interest becomes stronger.

The Constitution insulates the judiciary from politics, so it is obvious that the government has a high interest in protecting the integrity of the judicial process, on which the rule of law depends, by safeguarding judges, jurors, and litigation participants from intimidation and corrupt influence (e.g., pressure to decide a case based on fear rather than on faithful application of the law).

Moreover, Section 1507 does not criminalize all expression; only expression undertaken “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.” The government must prove this intent requirement beyond a reasonable doubt. The First Amendment is not a defense against menacing. Furthermore, free expression forbids only the criminalization of protected speech, not proof of speech as evidence of a standard crime. (The First Amendment, for example, does not bar a prosecutor from proving that the mafia boss said “Whack him” to the button man shortly before the murder.)

It is notable that, in connection with the Capitol riot, the Justice Department has prosecuted scores of protesters on charges of parading on restricted federal territory. For analogous reasons, parading is one of the activities proscribed by Section 1507. In connection with January 6, the Biden Justice Department and the FBI wanted everyone to know it was scorching the earth to hold accountable everyone who could be identified as having violated the law, even if they themselves did not engage in forcible conduct against police or property. Under Attorney General Merrick Garland’s guidance, prosecutors turned a deaf ear to people who claimed “I was just peacefully protesting,” if the protesting was done under circumstances forbidden by law.

Acts that aim to intimidate and corruptly influence a judicial tribunal may be charged as obstruction of justice, under Section 1512(c)(2) of the penal code. This offense, because it also safeguards congressional proceedings, has quite properly been charged against several of the January 6 defendants.

It could not be more blatant: Legally, the Justice Department has the same obligation to protect the Supreme Court as it does to protect the Congress. But politically, Capitol riot prosecutions of protesters promote the Biden-administration and Democratic Party line that Trump supporters are white-supremacist domestic terrorists; by contrast, prosecutions of protesters trying to intimidate Supreme Court justices would undermine the Biden-administration and Democratic Party line that the offense here is not the criminal leak and obstruction of the judicial process but the substance of a draft opinion that may not reflect the final Dobbs ruling (but that would be entirely lawful if it does). Because politics, not law, drives the Biden Justice Department, the January 6 prosecutions are pursued but the unlawful interference with the judicial process is ignored.

The Biden DOJ is being silent on this for the same reason as the White House. They are elevating their political interest in portraying the draft Supreme Court opinion as extreme over their constitutional duty to execute the laws faithfully and protect both the Court and the justices.

I would note that months ago, when Attorney General Garland unjustifiably dispatched the FBI to investigate parents who were protesting the inclusion of racist and anti-American materials in school curricula, Garland claimed that the Justice Department had an interest in protecting teachers and school administrators. Not only was it untrue that schools were under siege; the relationship between parents and schools is a state and local issue, not a federal one — hypothetically, if a parent were to assault a teacher, it would be a state crime, not a federal one.

A DOJ memo last fall directed the FBI to investigate “threats of violence” at school board meetings in order to combat threats against school officials by angry parents. Garland received massive backlash for his directive because it came just days after the National School Board Association (NSBA) wrote a letter to Biden asking his administration to treat parent protests at school board meetings as possible acts of “domestic terrorism.”

By contrast, the protection of the Supreme Court as an institution, and of the justices’ security, are patently federal matters over which federal law-enforcement has clear jurisdiction. It is inexcusable that the Justice Department is so silent and passive now, when it was loud and active over a manufactured controversy as to which it had no jurisdiction.

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