Politicizing the Rule of Law Is More Dangerous Than a Capitol Hill Riot | Opinion

As the first anniversary of the Capitol riot approaches, the Democrats are planning an overcaffeinated extravaganza to exploit the anniversary of the Capitol breach. It's par for the course at this point: Since January 6, a clanging chorus of commentators has standardized the language surrounding the event with the use of a few choice phrases including "insurrection," "assault on democracy," and—according President Biden—"the worst attack on the capitol since the Civil War."

This hyperbole erases not only 9/11, when United Flight 93 was on course to destroy the Capitol Building until citizen heroes intervened, but a 1954 assault on Congress when terrorists fired indiscriminately from the gallery into the House chamber, wounding five congressmen.

Worse, the hysteria surrounding the Capitol riot does something even more dangerous than the riot itself accomplished. For even more destructive than the actions of the miscreants who bashed in the windows of our Capitol building and swarmed into the U.S. Congress are these attempts to politicize the rule of law. And as these attempts reach a fever pitch this week, American citizens must demand equal application of the rule of law.

Much of what occurred on January 6 was unquestionably criminal. Every illegal act is wrong and deserving of punishment. As a prosecutor, I've sent lots of wrongdoers to prison; I would never advocate a free pass for lawbreakers. Every January 6 rioter who assaulted a police officer should be imprisoned. But the rule of law requires consistency. And that's what's missing—and what's being hidden by the hyperbole.

After all, the political violence of 2020 didn't begin on January 6. It began with the Black Lives Matter riots throughout the summer. And if every person who rioted or injured others on January 6 belongs in prison, so, too, do the BLM rioters and Antifa lawbreakers who did the same in cities across America in the months before January 6.

WASHINGTON, DC - NOVEMBER 15: U.S. President Joe Biden talks to Speaker of the House Nancy Pelosi after signing the Infrastructure Investment and Jobs Act as he is surrounded by lawmakers and members of his Cabinet during a ceremony on the South Lawn at the White House on November 15, 2021 in Washington, DC. The $1.2 trillion package will provide funds for public infrastructure projects including improvements to the country’s transportation networks, increasing rural broadband access, and projects to modernizing water and energy systems. Alex Wong/Getty Images

The message on a protestor's flag is protected speech, no matter what side of the issue they are on. But when the protestor wields the flagpole as a weapon to injure a law enforcement officer or bystander, the rule of law demands prosecution—even if the prosecutor supports the message on the flag.

Some will say assaulting the Capitol is different, since it's the seat of our democracy. Violence there is more serious than other violence, the argument goes. But to embrace that view, you must first agree that politicians deserve more legal protection from harm than the average American who employs those public servants.

No matter what your view on who should get better protection, we can all agree that removing our political filter allows us to muster the same indignation for violence against all three co-equal government branches. And that means the attempted breach of the White House by Black Lives Matter rioters on May 29, 2020 that injured more than 50 law enforcement officers, also requires a government commission and the same energetic Justice Department enforcement employed for January 6. After all, an attack on the executive branch is as damaging to our democracy as one on the legislative branch.

This is also true for the multiple assaults on federal courthouses. Judicial branch personnel were endangered nightly as Antifa thugs launched weapons far deadlier than any used in the Capitol breach. Yet the same Biden Justice Department manically pursuing January 6 prosecutions has dismissed almost half the cases against courthouse insurrectionists.

This is a perilous breach of the rule of law.

This is not to say Republicans don't take political advantage when the opportunity arises. One precept of politics is perfectly predictable: political actors will act politically. Yet it's the Democrats who currently hold power, and with Joe Biden's approval ratings hovering below curb height, Democrats desperately need a distraction—and this week, here it comes. But they are setting a dangerous precedent.

Just a few decades ago, government officials in Communist China twisted the rule of law to murder their political enemies by the millions. Years earlier, Hitler and Stalin did the same. One of many commonalities between these despicable despots was their willingness to use government power against political opponents—while allowing their comrades free reign to harass, brainwash, and murder.

Mass murders instigated by government oppressors are unlikely in America, where our exceptional founding documents and Anglo American tradition are stout bulwarks against tyranny. But effacing the rule of law may well encourage everyday folks to snub legal obligations. When legal accountability shifts with the winds of whichever blowhards are in power, why bother following the law?

Insisting on a non-partisan application of the rule of law was easier when we were the Americans of September 11, angry and united. Sadly, we're now the Americans of January 6: angry and estranged. And such political strife can erode the essential safeguard the rule of law provides.

History reminds us that the most pernicious abuses of the rule of law spring from partisan motives, when elected officials feel the tug of temptation to wield their power to undercut the opposing party. The rule of law, when properly buttressed, restrains politicians from succumbing to that lure.

If we, as Ben Franklin once wondered, aim to keep this republic, we must stand vigilant against politicians who abuse the rule of law for partisan gain. This is particularly true this week, as we watch far too many officeholders use the governance platform citizens lent to them for the petty, partisan enterprise of tightening their slippery hold on power.

Mark R. Weaver is a prosecutor and media law attorney who was previously a spokesman for the U.S. Department of Justice. He is the author of the book "A Wordsmith's Work." Follow him on Twitter @MarkRWeaver.

The views in this article are the writer's own.