Monday, June 24, 2013

The Sovietization of Federal Law

“Show me the man and I’ll find you the crime.”

That paean to non-objective law is attributed to Lavrenti Beria, Joseph Stalin’s chief of secret police. It is cited by Harvard Law School professor Alan Dershowitz in his foreword to Three Felonies a Day: How the Feds Target the Innocent, by Harvey Silverglate (p. xxxvi).


Objective law consists of simple, clear, concrete statements of what citizens cannot do in a free society. Non-objective law is pliable; it is excessively broad and vague such that both prosecutors and ordinary citizens can come up with contradictory interpretations. As a result, prosecutors can use those contradictions, “creatively” bending the law, to charge crimes against anyone they want to get. Hence, the Beria claim.

Non-objective law is an essential tool of dictatorship.

The modern Berias are federal prosecutors who work for the United States Department of Justice (DOJ). As thoroughly argued and documented in Silverglate’s book, thousands of federal criminal laws are so broad and vague that prosecutors can find something in them to charge any one of us with up to three felonies a day.*

Consider two high profile cases. Michael Milken, the so-called junk-bond king, pled guilty to six felony counts only after prosecutor Rudolph Giuliani threatened to send his younger brother to prison. Yet editorials in the Wall Street Journal and research by law school deans concluded that “the entire original indictment [against Milken] described perfectly lawful transactions that required a huge stretch to be even remotely considered criminal” (Silverglate, p. 102).

And the late Arthur Anderson LLP, one of the then Big Five accounting firms in the US, was indicted by Enron prosecutors for destroying documents that the prosecutors needed to go after Enron. Arthur Anderson at the time was following generally accepted accounting practices. That, of course, did not stop the prosecutors from indicting the firm for obstruction of justice. Clients began leaving the firm and Anderson soon went out of business. In 2005, the US Supreme Court unanimously exonerated the firm, which unfortunately for Anderson was a “Pyrrhic victory,” as Silverglate puts it (p. 136).

In subsequent cases business firms have learned the Arthur Anderson lesson: instead of fighting the Justice Department and possibly going out of business, they now send sacrificial lambs (usually, individual executives) to the prosecutorial wolves.

The ruthlessness with which prosecutors pursue their targets is reminiscent of Javert, Victor Hugo’s maniacal police inspector in Les Miserables who obsessively stalked the “vicious” bread thief Jean Valjean. Javert’s mantra, however, was strict adherence and obedience to the law, which in the nineteenth century was simple and clear: don’t steal bread. Javert’s punishments were harsh, but his character still seems a little too nice when compared to the prosecutors in Silverglate’s reports.

Playing especially to a gullible and supportive press, today’s prosecutors hunt for victims who may not have done anything harmful or illegal at all or at most have taken an action considered legal at the time of the act, only to be indicted later. Most politicians are former prosecutors, so most prosecutors are wannabe governors and senators. They aim to win and will do anything to establish that victory, seemingly caring little about truth or justice.

To change the comparison, prosecutors are like gunslingers in the old west who are only too eager to add notches to their prosecutorial guns, such notches paraded later in political campaigns for public office.

The tactics of prosecutors, to say the least, are less than admirable. “Ladder climbing” is common. To get a high profile target, prosecutors threaten lower level employees with stiff fines and prison terms to get them to testify against the bigger fish. The prosecutors then “move up the ladder” until they have something on their target. However, as Dershowitz puts it, these “cooperating” witnesses often “are taught not only to sing, but also to compose” (quoted in Silverglate, p. xliv). Offering these witnesses something of value in exchange for testimony—witness bribery in Silverglate’s words—is also not uncommon.

Merciless hounding, Javert-style, lasting ten or more years, is routine for prosecutors who refuse to stop even after appellate courts have overturned their verdicts. Piling on charges, sometimes in the hundreds, usually insures that the target will be found guilty of something. Midnight FBI interrogations to intimidate defense witnesses have occurred, as have the use of Gestapo-like (SWAT team) raids of medical offices, with assistants told at gunpoint to hang up the phone. Doctors who are partners have been charged with conspiracy, based on no more evidence than the fact that they were partners. And doctors who specialize in pain management are treated like street pushers.**

And, of course, there is more. Prosecutors freeze defendant assets, often making it nearly impossible for a victim to finance a legal defense. They impose gag orders, thereby preventing defendants, or their attorneys, from talking to the press about the case. When Martha Stewart defended her case via press release, the DOJ took this as evidence of securities fraud (p. 121). Prosecutors, of course, still retain the right to try their cases in public, relishing especially the nightly news “perp walk.”

Among themselves prosecutors reportedly play a game to see how long it takes their junior colleagues to come up with crimes to charge famous personalities, such as Mother Theresa or John Lennon.

Sovietization is here. Beria would be proud of our system!



*The DOJ also prosecutes the notoriously non-objective antitrust laws that can find businesses guilty of monopolization if they price their products above the market, guilty of predatory pricing if they set prices below the market, and guilty of collusion and conspiracy if they match the prices of competitors.

**”Sick culture” are the words Silverglate uses to describe the DOJ’s current amoral mindset. See Silverglate’s and two other writers’ discussions of the disgraceful persecution of the late Aaron Schwartz: 1, 2, 3.


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