Interim Washington, D.C., U.S. Attorney Ed Martin has dropped plans to investigate the most powerful elected Democrat over a statement he made about two conservative Supreme Court justices five years ago, concluding that a probe is unfounded, the Washington Post reports. Martin decided that a quickly walked-back statement in March 2020 from Senate Minority Leader Charles Schumer (NY) — in which he said two of President Trump’s Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, would “pay the price” for a vote against abortion rights — fell short of a prosecutable “true threat.” The barriers to building a case before a statute of limitations ran out Tuesday were many, experts said, and included First Amendment and other legal hurdles to an investigation including a Supreme Court precedent requiring that prosecutors prove a speaker’s “recklessness” or a “conscious disregard” of the dangers posed by a statement.
Sources said no grand jury investigation was opened. “Every prosecutor knows that there is a difference between statements that are careless and statements that are criminal,” said Barbara McQuade, a former federal prosecutor and University of Michigan law professor. “While threats to commit violence against an individual are serious crimes and should be prosecuted, general statements about political anger do not qualify,” McQuade said. “It would be wise for all of us to turn down the temperature on the political rhetoric, because it can stoke unhinged individuals to commit acts of political violence.” Martin has announced an initiative called “Operation Whirlwind” to prosecute a rising tide of threats against public officials. The name echoed language Schumer used five years ago, when he said that Gorsuch and Kavanaugh “have released the whirlwind, and … will pay the price” for a decision against abortion rights. Martin has written three letters to Schumer about the comments since taking office Jan. 20. Schumer’s chief of staff, Michael Lynch, said the remarks were not a threat to physically harm any person — a point Schumer made after rebukes from then-Senate Majority Leader Mitch McConnell (R-KY) and Chief Justice John Roberts.
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