This day had to come. I find myself with the inescapable view that Sen. Chuck Schumer is being treated unfairly. There, I said it. Edward R. Martin, Jr., the Interim D.C. U.S. Attorney, recently announced that he is investigating Schumer. The possible criminal charge is linked to Schumer’s infamous speech on the steps of the Supreme Court in March 2020, threatening justices with retaliation if they voted against abortion rights. I have repeatedly denounced Schumer for his “rage rhetoric” and his pandering to the most extreme elements of the party. However, a criminal investigation into the speech is unwarranted and unwise.

Many of us were shocked by Schumer’s remarks in 2020. He thrilled the crowd by yelling, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”

This occurred before the assassination attempt on Justice Kavanaugh.

The announced investigation of Schumer clearly pleased many on the right. It was viewed as “fair game” by many who watched Schumer support the weaponization of the criminal justice system against Donald Trump and other conservatives.

However, movements die not from a lack of passion but a lack of restraint. What thrills many is precisely what enraged them about the Biden Justice Department.

Schumer was engaged in reckless rage rhetoric. Even those of us who immediately condemned him did not seriously believe that Schumer was calling for a hit or physical attack on the justices. The danger was how such rhetoric affects unstable individuals like Nicholas John Roske who sought to impose a “price” on Kavanaugh. It is the same rhetoric that fuels individuals like  Ryan Michael “Reily” English who is accused of hunting figures like Speaker Mike Johnson and Secretary of Defense Pete Hegseth.

In this case, prosecutorial discretion and levelheadedness should have prevailed before the formal commencement of an investigation.

The basis for the investigation is 18 U.S. Code § 115, which covers anyone who threatens a federal government official or their family with the “intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties.”

However, that language followed the precursory language of a threat “to assault, kidnap, or murder” the covered person.

Schumer did not call for physical assaults, let alone kidnapping or murder.

Ironically, this is precisely the type of unhinged interpretation that has characterized the legal analysis on the left for years.

For example, Harvard Law Professor Laurence Tribe even declared Trump guilty of the attempted murder of Vice President Mike Pence on January 6, 2021. While no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.”

It is the same analysis that built impeachment and criminal allegations around Trump’s call on January 6th for his supporters to “fight” against certification of the election. Despite Trump also stating that they should protest “peacefully,” politicians like Schumer and pundits like Tribe insisted that it constituted a criminal insurrection.

It is the same rhetoric used recently by House Minority Leader Hakeem Jeffries, D-N.Y., in calling for Democrats to “fight in the streets.” Likewise, Rep. Dan Goldman (D., N.Y.), who insisted that Trump could be criminally charged for his fighting word, called for Trump to be “eliminated.” (He later apologized as did Jeffries and Schumer for their remarks.).

As discussed in my recent book, “The Indispensable Right: Free Speech in an Age of Rage,” rage rhetoric has been part of our political system since the founding. The greatest danger is when such rage rhetoric is used as an excuse for what I call “state rage.” Often free speech is the first casualty in an age of rage.

Schumer is not going to be charged. However, that is not the point.

If Schumer can be investigated for threatening justices with his overheated language, the federal government would have an excuse to put an array of political opponents, journalists, and activists under investigation. Even if they do not result in a criminal charge, they allow for the federal government to use its powerful tools against targeted persons or groups, including potential electronic surveillance and the seizure of documents or files.

The investigation of Schumer will achieve nothing beyond fulfilling the narrative of the left that Trump is going to weaponize the criminal justice system against his opponents. It is more likely to delight than deter Chuck Schumer.

The Trump Administration is already undermining its successful message from the election against political weaponization by threatening line FBI agents or prosecutors who were assigned to the Trump investigations. Trump is correct that the Justice Department and the FBI must be reformed. However, the source of this abuse was not found in the rank-and-file employees who were carrying out their functions under court supervision.

The success of the Trump Administration will demand not just reform but restraint. It must maintain the very discipline that was missing under the Biden Administration, particularly in targeting the use of free speech rights.

Donald Trump could be the president who restored free speech protections after years of censorship and targeting by the Biden Administration. It could be his most lasting legacy. However, that legacy will be lost in tit-for-tat investigations of his political opponents.