Our federal government is out of control. That fact is no longer even debatable. Numerous groups are looking for ways to remedy that situation before it's too late. One such group is the Convention of States movement. They're working to bring our government to heel by using Article V of the Constitution to implement amendments for
- fiscal accountability,
- term limits, and
- constraints on government overreach.
There are numerous straightforward ideas to achieve fiscal accountability and term limits. However, that "constraining government overreach" one is tricky. What is overreach? How can it be prevented in a legally enforceable way? I have a modest proposal.
There is no greater form of government overreach than federal officials using the power of their offices to violate our Constitutionally protected rights. Fortunately, there's already a statute that criminalizes such actions. Its title is "MISCONDUCT BY LAW ENFORCEMENT & OTHER GOVERNMENT ACTORS -- Deprivation of Rights Under Color of Law" (18 USC §242). I'll refer to it as the "color of law" statute for brevity. It reads:
This provision makes it a crime for someone acting under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
The "color of law" statute imposes sentences, up to and including life imprisonment or death, depending on the severity of the infraction. Violations of a person's rights is serious business — as it should be.
The statute has been used many times in the past — particularly in the prosecution of misbehaving local police officers. Officers prosecuted using the law include those involved in the cases of Rodney King, Breonna Taylor, George Floyd, Randal Worcester, and many others.
But the law isn't working when it comes to federal agents — particularly the FBI. The last 14 years has treated us to a parade of civil rights violations by federal officials.
Our freedom of speech was violated when the IRS targeted conservative advocacy groups at the direction of Lois Lerner. The FBI kicked it up a notch when it assigned agents to work with Twitter to censor inconvenient opinionsabout the 2020 election and COVID protocols.
Our right to be free from unreasonable search and seizure was violated when the FBI obtained travel information from Bank of America — not to investigate a crime, but to look for one. In another case, the FBI fabricated evidence to obtain a FISA warrant against Trump campaign official Carter Page — attempting to undermine the peaceful transition of power.
Our right to freedom of religion was attacked when the FBI placed assets in the Catholic Church, looking for pro-life domestic terrorists, when no crime had even been committed.
Freedom of the press was disregarded when the FBI raided the homes of Project Veritas reporters in search of Ashley Biden's diary. Ashley hadn't admitted that the diary was hers, there was no evidence that it was stolen, and Project Veritas had offered to give it to the FBI. They chose to use an armed raid instead.
Yet none of the officials involved in these violations has faced charges under the "color of law" statute. Why is that? It's because the authority to prosecute violations of the statute is granted to the DOJ, and the investigation of infractions is the sole domain of the FBI (28 USC §533). For the law to work at the federal level, agents who investigated parents for protesting at school boards would face prosecution only if the guy (Merrick Garland) who sent them to do it decided to prosecute them. That's the conundrum. Enforcement at the federal level is in the hands of the worst offenders.
But we can fix it without implementing any new laws. Let's just make the existing law work for us by empowering the states to enforce it. Either through statutory revision or by constitutional amendment, grant state attorneys general the authority to enforce the "color of law" statute. Give them the ability to convene grand juries, task investigators, and prosecute infractions.
As long as we're making a few minor changes, let's include a clarification that shouldn't be necessary — but sadly will be. Explicitly state that violation of constitutionally protected rights is outside the authorities granted with any federal job. Employees who violate such laws are not acting in accordance with their job duties, but rather as rogue operators. As such, they will be responsible for their own legal defense and any resulting penalties.
There are a number advantages to empowering states to oversee the federal government. It will provide accountability to federal law enforcement by unbiased, duly elected law enforcement officials working for the public interest. It's another check and balance.
Empowering the states to enforce the "color of law" statute will also move trials to various "non-swampy" jurisdictions. If an FBI agent works with Twitter to silence a hypothetical Missouri blogger's opinion about the 2020 election, that agent will face a jury of his peers in Jefferson City, Missouri — not Washington, D.C.
The provision will also work retroactively. You can't try someone for something that wasn't illegal when he committed the act. But the "color of law" statute has been the law of the land since the 19th century. There would be nothing new about the law — only the method of enforcement. When the FBI placed spies in the Catholic Church trying to find or create a crime, they broke the law. Even though Herr Garland would never prosecute, this provision would allow some other law enforcement official in the future to hold the agents accountable. Do you think that might cause a few past bad actors to lose some sleep?
The howling from the feds will be epic. They'll claim that they won't be able to prosecute actual criminals for fear of malicious prosecutions. Poppycock. They won't be inhibited any more than local police already are. Federal officials will have the same protections that our local police officers have:
- Legal oversight by elected officials — who haven't the time for nuisance or unwinnable cases
- Protection from unreasonable indictment — by a grand jury of disinterested civilians
- Article III assurance of a fair trial — by an impartial judge
- A right to defend themselves before a jury of their peers — in someplace like Wichita, KS
My answer to their howling is that they brought this on themselves. Their nonchalance regarding our rights and their oath requires a corrective action. If that correction is somewhat unpleasant, so be it. Welcome to the world of accountability.
The next president should also issue an executive order to make it clear to members of the Executive Branch that this extra bit of oversight is serious. Upon completing their oath of office, federal officials should be required to sign their first affidavit as a condition of employment. It should affirm that
- they have read and understand the Constitution,
- they have read and understand 18 USC §242, and
- they understand that this acknowledgment may be used in a court of law.
If they decide to color outside the lines, there won't be any "I didn't know it was illegal" defense.