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On January 24, 2025, the Justice Department made two announcements that revealed what it prioritizes. The contrast wasn’t subtle. Federal prosecutors would aggressively pursue protesters who interrupted worship to object to immigration raids. But they wouldn’t investigate whether a federal agent violated the Constitution when he fired into a woman whose vehicle was moving away from him.
This is how the Justice Department decides which cases to prosecute: through decisions made by political appointees, prosecutors, and budget limits that determine whose rights get protected and whose violations get ignored.
How Cases Reach Prosecutors
The FBI usually investigates first and decides whether to send the case to prosecutors. This initial screening matters enormously. If the FBI determines there’s insufficient probable cause, the case may never reach the division’s prosecutors who specialize in constitutional law.
The division also receives complaints directly—from individuals, advocacy organizations, state officials. These flood in constantly: allegations of discrimination in federally funded programs, voting violations, housing discrimination, disability access failures. A team checks whether the complaints meet legal requirements and deadlines. They receive far more complaints than they can investigate. Choices get made.
Different Legal Standards for Different Violations
The statutes governing federal protection of constitutional freedoms create dramatically different thresholds depending on who committed the violation and what law they allegedly broke.
The law that applies to federal officers requires proving the officer intentionally violated rights. Courts say prosecutors must prove the officer knew it was illegal and did it anyway. Federal prosecutors must show not only that the officer’s conduct was unconstitutional, but that he knew it was unconstitutional and did it anyway.
This standard systematically favors officers who articulate any plausible justification for their conduct, no matter how weak. An officer with a documented history of excessive force complaints presents a stronger case than one with a clean record, even if the underlying shooting appears equally unjustified.
Now consider the Freedom of Access to Clinic Entrances Act, which Attorney General Pam Bondi invoked when announcing charges against the church protesters. The FACE Act prohibits using force or physical obstruction to interfere with religious worship or reproductive health services. It applies to private citizens, not government actors. And it requires only proof of intent to obstruct—not willful violation of known constitutional protections.
The standards are completely different. Prosecuting a federal agent requires much stronger evidence. Prosecuting protesters for disrupting a church service requires showing they intended to disrupt worship. One demands proof of specific intent to violate the Constitution. The other needs evidence of interference. Prosecutors need less evidence to charge protesters than to investigate their own agents.
Career Prosecutors and Political Appointees
Career prosecutors and political appointees work together, but often disagree. Career prosecutors learn how the law works and what evidence is needed. They push back against decisions they think are wrong or politically driven. But they have few ways to fight back.
In this case, prosecutors reacted in an unusual way. At headquarters, lawyers volunteered to investigate but were told no. Prosecutors believed political appointees were ignoring their expertise and the evidence.
The FACE Act’s Shift in Enforcement
Congress passed the FACE Act in 1994 after violence at abortion clinics, including the murder of Dr. David Gunn. The law was meant to prosecute people who blocked clinics and, secondarily, places of worship.
For thirty years, prosecutors used it almost entirely against anti-abortion activists. The protesters disrupted a church service by chanting, holding signs, and blocking people from worshipping. The contrast was clear: prosecutors charged protesters but wouldn’t investigate the shooting.
Resource Constraints and Case Selection
The division has about 600 lawyers working on different types of cases. That’s far below what they’d need if they investigated every possible violation. This shortage forces them to choose which cases to pursue. Section leaders decide which types of cases to focus on. Political appointees can change these decisions through budget, hiring, and orders.
Lawyers left because of demotions, pressure to quit, and disagreement with new leadership. The Minnesota office was already understaffed and got worse. Lawyers said they were told to close cases quickly by accepting guilty pleas or dropping charges.
Experienced prosecutors left, taking their expertise with them. They were replaced by temporary or junior lawyers without the same skills. This loss of talent changes which cases get pursued. Experienced prosecutors can spend time analyzing complicated cases. Overworked prosecutors focus on the easiest cases. Budget limits also mean cases with famous victims get more attention because they’re easier to win and get media coverage. Cases about widespread discrimination get less attention because they take years and don’t make headlines.
Prosecutorial Discretion and Judicial Limits
Federal prosecutors decide which cases to bring. The Supreme Court says prosecutors can decide which cases to bring, and judges can’t usually override them.
It’s hard to challenge these decisions. Defendants must prove prosecutors treated them differently because of race or politics. This is nearly impossible because defendants can’t see prosecutors’ files. Someone could argue that prosecutors only used the FACE Act against this protest because of politics. But they’d need to show prosecutors never charged anyone else for similar conduct. These challenges almost never win, even when prosecutors are clearly being political.
The system depends on prosecutors’ integrity and internal rules, not laws. When these protections break down, there’s nothing to stop prosecutors from abusing power.
Constitutional Protection Under Political Case Selection
If politics instead of evidence determines which cases are prosecuted, the law becomes meaningless. Federal judges are starting to doubt what prosecutors tell them. This damage affects the whole system, which depends on judges trusting prosecutors.
This is especially dangerous for constitutional rights. When politics drives case selection, the system fails to protect people from government abuse. Prosecutors are charging protesters while ignoring a federal agent’s shooting—backwards. Protesters face charges for speaking out. Federal agents face little accountability for their actions.
The damage to the division may be hard to fix. Lawyers quit because they thought the division stopped protecting constitutional rights. It will be hard to hire new lawyers for a division seen as political. The expertise built over decades left with the experienced prosecutors.
State officials, advocacy groups, and private lawsuits might fill some gaps. State officials are investigating shootings the federal government ignores. Advocacy groups are suing federal agents. But these don’t fully replace federal action. State officials have their own political pressures. Private lawsuits depend on victims having money and willingness to sue. Neither replaces the federal government’s power to prosecute its own agents.
Case selection depends on laws, ethics, budget, and politics. When politics and ethics agree, things work. When politics conflicts with evidence, there’s nothing to stop political appointees. Prosecutors can only quit. Whether the division can be fixed depends on future leaders and whether lawyers will come back. The laws protecting constitutional rights are still strong. But whether those laws are used depends on politics, not the law itself.
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