Federal Prosecutor Misconduct—Goodbye Rule of Law, Hello Rule of Men and Women

The 2014 book Licensed to Lie: Exposing Corruption in the Department of Justice by appellate lawyer Sidney Powell is at once a thriller and a detailed presentation of the intricacies—and horrors—of appellate law in the United States today.

The thriller part is the manner in which it is written, with suspense and purposeful progression to the resolution of a climax. It is therefore a page turner that unfortunately does not conclude with a happy ending. The book is a manual of misconduct by federal prosecutors, nearly all of whom have moved on to higher positions in the Department of Justice (DOJ), the White House, and prestigious Washington, DC, law firms.

Powell’s client, James A. Brown, a totally honest and cooperative financial executive at Merrill Lynch, got caught up in the Enron firestorm and collapse of 1999 to 2001. Indicted along with three other Merrill executives in 2003 under the bogus and decidedly non-objective “honest services” statute, Brown had to settle for “time served” (twelve months in the maximum security prison at Fort Dix, New Jersey), after a  nine-year ordeal to clear his name involving multiple motions and appeals to the trial judge, the Fifth Circuit Court of Appeals, and the Supreme Court.*

Powell became Brown’s appellate lawyer after the initial trial; at sentencing, in 2005, the judge denied bail pending appeal, thus sending Brown to prison to serve his time, originally forty-six months. The Fifth Circuit in 2006 overturned three of the five charges, remanded the remaining two to retrial (for the favorite DOJ charges of “perjury” and “obstruction of justice”), and ordered Brown released from prison instanter, which means immediately (and which meant that Brown was on probation for the next six years of motions and appeals).

Along the way to this less than satisfying resolution, Powell chronicles the Arthur Anderson demise, because of her assistance in Anderson’s appeal to the Supreme Court, and the prosecution and exoneration of Alaska Senator Ted Stevens, because of the case’s relevance to Brown’s. The Supreme Court reversed charges against Arthur Anderson 9-0, unfortunately too late for Anderson’s 85,000 employees, as the company was out of business by 2005.**

In the Stevens case, the jury conveniently declared Stevens guilty eight days before the 2008 election, causing him to lose his 40-year senate seat and giving the opposition party a supermajority of 60 senators. An FBI agent subsequently blew the whistle on prosecutors for withholding exculpatory evidence. Thus, the case was dismissed in 2009—by incoming attorney general Eric Holder who jumped at the opportunity to take credit for doing something right (but doing little else on such misconduct afterwards). Judge Emmet Sullivan excoriated the DOJ and on his own appointed an independent counsel to investigate the department’s behavior. The report was issued in 2012.***

Prosecutor misconduct in the Brown case was legion. Most significant and morally outrageous was the failure to turn over exculpatory evidence to the defense. This included full “302’s,” FBI notes from agent interviews of suspects and witnesses; only summaries were offered. Federal prosecutors and the DOJ itself insist that they have sole discretion to determine “materiality” of evidence for the defense. Thus, as Powell says, prosecutors claim the right to be both judge and jury before handing over evidence. In preparation for retrial, a new prosecution team apparently “slipped up,” as they sent Powell a complete CD of exculpatory information that should have acquitted her client at the initial trial.

Other misconduct: misleadingly encouraging Brown to talk freely in front of the Grand Jury, whether “accurate or not” (words of lead prosecutor Andrew Weissmann), then using the testimony to charge him with perjury; being charged for a perfectly legal business transaction (the vague, overly broad, and alleged “honest services” fraud) that Brown had advised against as not a good business deal; charging Brown for an allegedly damaging phone call that he was not even on but was used against all four defendants; using threats and intimidation against exculpatory witnesses, threatening them with indictment if their testimony was not what the prosecution was looking for; and just plain disgusting gamesmanship on the part of prosecutors, threatening the defendant with more prison time and misleading him by saying they fully intended to retry him, but a few days before the retrial date suddenly dropped the whole thing.

The aim of a trial—of all participants, prosecution, defense, and judge—has historically been to seek facts and truth, whatever the outcome may be. That is no longer the case in our present legal system, especially the Department of Justice. Winning seems to be the only thing and that motivation follows from our postmodern collapse of reason, logic, and objectivity. In philosophy, all three have been questioned for two hundred years. Doubt about them now has made its way to our law schools and courts.

In the Department of Justice, winning seems to be the only way to advance a career. In 2012 a bill was introduced in Congress, the Fairness in Disclosure of Evidence Act, to remove “materiality” from the discretion of prosecutors. It was adamantly opposed by the DOJ and killed by Congress.

What are we left with when reason, logic, and objectivity are removed from the law? Rule by men and women, due to the vague and overly broad statutes, the arbitrary application of procedures, along with delays, and other prosecutorial tricks aimed at wearing a defendant down so he or she will plead to a lesser crime, even though innocent.

When this occurs prosecutors get another notch in their six shooters and opportunities to move up in the organization. What we are left with, as Harvey Silverglate demonstrated in 2013, is the prospect of every innocent person possibly charged with Three Felonies a Day!


*The Merrill executives supposedly failed to provide “honest services” to Enron in the so-called Nigerian Barge deal, but even the Fifth Circuit and Supreme Courts have had trouble understanding what “honest services” is supposed to mean, especially when the Merrill executives and the company itself received no bribes or kickbacks in the deal. Criminal intent—mens rea—was excluded from trial consideration (and continues to be in many federal cases). All four defendants served time in prison, Brown the longest. One was acquitted by the Fifth Circuit and the essential “honest services” charges were dropped. “Honest services” are part of the federal mail and wire fraud statute.

**Six Enron cases, including Arthur Anderson and Brown, were reversed either completely or partially by the Fifth Circuit or Supreme Court. Enron’s former treasurer pleaded guilty but refused to testify against anyone or at the grand jury. He “wised up” after a few weeks in solitary confinement.

***Emmet Sullivan is the current judge presiding over the case of General Mike Flynn. Sidney Powell is Flynn’s defense attorney.