The Case for Making False Prosecution by Prosecutors a Federal Crime

By Tim McGuinness, Ph.D., DFin, MCPO, MAnth – Research Partner, Emeritus Council

Shielding Justice: The Case for Making False Prosecution a Federal Crime to Protect Democracy and the Rule of Law

False prosecution, particularly when carried out by prosecutors, district attorneys, or state attorneys, represents a grave abuse of power with far-reaching consequences for individuals, communities, and the justice system as a whole.

Despite the existing mechanisms to address prosecutorial misconduct through professional discipline or civil remedies, the absence of criminal penalties for intentional false prosecution leaves a dangerous gap in accountability. To safeguard justice and prevent the misuse of prosecutorial authority, Congress should make intentional false prosecution by prosecutors a federal felony in and of itself.

The Dangers of False Prosecution and “Lawfare”

Definition of Lawfare

“Lawfare” refers to the weaponization of legal systems to target individuals or entities for political, personal, or ideological reasons rather than legitimate legal purposes. It is a tactic that undermines the rule of law by exploiting legal processes as tools of persecution. In cases of false prosecution, lawfare can inflict severe damage on defendants while corroding the integrity of the justice system.

Weaponizing Prosecutorial Authority

Prosecutors wield immense power, including the discretion to bring criminal charges, subpoena witnesses, and influence public perception through legal filings and media narratives. When this power is used maliciously or recklessly, it becomes a weapon of oppression rather than justice. False prosecution transforms the prosecutor’s role from a minister of justice into an instrument of vengeance, violating the constitutional rights of the accused and undermining the principle of fairness.

The Harm to Falsely Accused Defendants

Emotional and Psychological Toll

Falsely accused individuals endure immense emotional stress throughout the legal process. The weight of public accusations, the threat of imprisonment, and the stigma associated with criminal charges can cause long-lasting trauma, anxiety, and depression.

Reputational Destruction

Even if ultimately acquitted, falsely accused defendants often face irreparable harm to their reputations. Media coverage, public scrutiny, and social stigma frequently persist long after the legal process concludes, affecting personal relationships and career opportunities.

Financial Ruin

Defending against false prosecution is extraordinarily expensive. Hiring skilled legal counsel, conducting investigations, and mounting a robust defense can drain a defendant’s financial resources, potentially leading to bankruptcy. For many, the cost of clearing their name exceeds their ability to pay, forcing them to settle for less effective representation.

Post-Trial Consequences

An acquittal does not erase the damage caused by a false prosecution. Defendants often face difficulties rebuilding their lives, as employers, lenders, and communities may remain skeptical of their innocence. The long shadow of an unfounded accusation can linger indefinitely.

The Broader Impact on Public Confidence

Erosion of Trust in Institutions

False prosecutions undermine public confidence in the judicial system. When prosecutors are seen as pursuing personal vendettas or political agendas, the public loses faith in the impartiality and integrity of the courts. This distrust can discourage victims from reporting crimes, diminish juror confidence, and create a climate of cynicism about the rule of law.

Chilling Effect on Political and Public Figures

The misuse of prosecutorial authority to target political figures, activists, or public officials represents a direct threat to democratic principles. High-profile cases, such as those involving former President Donald Trump, illustrate how “lawfare” can be weaponized to silence dissent, discredit opponents, and interfere with electoral processes. Such tactics set a dangerous precedent that threatens free speech, political participation, and the balance of power.

Community Polarization

False prosecutions, particularly when they are politically motivated, exacerbate divisions within communities. They create narratives of victimization and persecution that deepen ideological rifts and foster animosity toward public institutions.

The Case for Federal Criminalization

Why Existing Remedies Are Insufficient

Currently, prosecutors who engage in misconduct are subject to disciplinary measures such as censure, suspension, or disbarment by state bar associations. While these sanctions can impact a prosecutor’s career, they are often inconsistently applied and lack the severity needed to deter intentional misconduct. Civil remedies, such as lawsuits for malicious prosecution, are also limited by prosecutorial immunity, which shields prosecutors from personal liability in many cases.

A Federal Standard of Accountability

Making intentional false prosecution a federal felony would establish a clear and consistent standard for accountability. It would send a strong message that prosecutorial power must be exercised responsibly and ethically, with severe consequences for those who abuse it.

Proposed Federal Framework

Definition of False Prosecution

False prosecution should be defined as the intentional or reckless pursuit of criminal charges against an individual, knowing that the charges are baseless, fabricated, or unsupported by credible evidence. This definition should encompass acts such as:

• Submitting false evidence or testimony.

• Knowingly withholding exculpatory evidence.

• Pursuing charges for the purpose of harassment, retaliation, or political gain.

Penalties

The penalties for false prosecution should include significant prison time, fines, and the permanent forfeiture of the individual’s ability to practice law or hold public office. These consequences would reflect the gravity of the harm caused by such misconduct.

Oversight and Enforcement

A dedicated federal oversight body could be established to investigate and prosecute cases of false prosecution. This body would ensure that accountability is not subject to local or state political pressures and that the process remains impartial and independent.

Conclusion: A Safeguard for Justice and Democracy

False prosecution by prosecutors is not merely a legal issue; it is a profound threat to the fabric of democracy and the rule of law. The financial, emotional, and reputational harm to falsely accused defendants is compounded by the broader erosion of public trust in legal institutions. The misuse of prosecutorial power, as exemplified by “lawfare” against high-profile figures like Donald Trump, demonstrates the urgent need for robust safeguards to prevent such abuses.

By criminalizing intentional false prosecution at the federal level, the United States can reaffirm its commitment to justice, protect the rights of defendants, and restore public confidence in its institutions. This step would deter rogue prosecutors, uphold the integrity of the legal system, and ensure that the immense power entrusted to prosecutors is wielded responsibly and ethically.