“The Justice Department is never going to go after you.”

November 3rd, 2011

This reminds me of a conversation Chief Justice Roberts had with then-Solicitor General Kagan. Kagan, after some badgering, conceded that the government could ban books, but they wouldn’t. Roberts said something like, we are not willing to give the government that kind of discretion.

So if DOJ says they won’t prosecute something, but they still assert the power exists, how do we treat that?