Sovietization of Federal Law—Part Two

In 2013 I posted “The Sovietization of Federal Law” (Applying Principles, pp. 68-70), featuring a book by Boston criminal defense attorney Harvey Silverglate: Three Felonies a Day: How the Feds Target the Innocent. I cited the foreword by Harvard law professor Alan Dershowitz who quoted Joseph Stalin’s head of secret police, Levrenti Beria, saying “Show me the man and I’ll find you the crime.”

This in essence is the theme of Silverglate’s book: non-objective federal laws are so vague and overly broad that prosecutors can find any law to use against any of us, perhaps up to three times a day.

Silverglate is back with a new book, coauthored by appellate lawyer Sidney Powell. The book is Conviction Machine: Standing Up to Federal Prosecutorial Abuse. It is a series of horror stories, nine chapters, to be exact. Here is the gist of each one.

Catch 22. Don’t talk to FBI agents unless you can record the interview, which they almost never allow, and your attorney is present. Typically, one agent takes notes (yes! in the age of electronic recording) while the other interviews. Selectively edited summaries are often what are turned over to defense attorneys. Agents may tell you that the interview is informal, so you don’t need counsel, and they may show up at your door unannounced.

There’s Nothing Grand about Grand Juries. Don’t talk to grand juries, if you can help it, even if you are just a witness. The prosecutor controls the entire process with sole aim of getting an indictment, about 95% of the time. It will be just you, the prosecutor, and up to twenty-three jurors. No counsel, especially defense attorneys, are allowed in. (You can pause and request to go outside to consult with your lawyer, but that will be a bad sign to the jury.) If you are a witness and the prosecutor does not like your testimony, you can be upgraded to a subject of interest or even to a target for indictment.

Acts of God. Prosecutors control discovery, which means the release of exculpatory evidence. They determine what is “material” to the defense, often cherry-picking what to hand over. See my March post. Also, see the Bernard Baran and Duke lacrosse cases.

What Does the Law Require of Us? Criminal intent, or mens rea, is often no longer required to be proven in alleged federal crimes. If an act did in fact occur, that’s all the proof needed to secure a conviction. The attitude of many federal prosecutors is that white collar targets are essentially the same as mobster thugs.

Plea Bargaining. Enormous pressure is brought on defendants to encourage pleading to a lesser crime regardless of guilt or innocence. Prosecutors often “concoct” crimes by piecing together vague portions of two statutes. Defendants take the pleas because it gets the horror over with and prosecutors like the deals because it gives them another notch in their six shooters. Losing at trial for the defendant may result in a longer sentence than would result from a plea bargain.

An Offer He Can’t Refuse. Informants and witnesses are offered attractive deals—reduced sentences or none at all—to encourage them not just to sing, in the words of Professor Dershowitz, but also to compose. Such deals would be called extortion, bribery, or obstruction of justice, if offered by a witness or defendant. And often the knowledge of such deals offered by prosecutors are excluded from court testimony.

Prosecutorial Misconduct. The subtitle of this chapter is “Who Will Prosecute the Prosecutor?” Good question. Apparently, no one. Prosecutors pile on the charges, not just one or two, but ten, thirty, seventy, and in some cases over one hundred. That way they know they will get at least one or a few definite judgments. Coauthor Powell says that her bosses, in the Department of Justice (DOJ) during her younger years of training, would urge prosecutors not to pile on the charges, but to select their four or five best and run with those. Prosecutors also don’t hesitate to strong-arm—as in threaten to indict or actually indict—family members. Wives, sons, brothers, elderly parents have all been intimidated by these guardians of the law. And, of course, prosecutors can and have ordered pre-dawn raids complete with SWAT teams and television cameras; they relish “perp walks” (in front of cameras), but get judges to issue gag orders against defendants. Does police state come to mind? And one more thing: prosecutors have absolute immunity, which means they cannot be sued! (See this for Silverglate’s commentary on how in 1990 the then head of the DOJ’s criminal division Robert Mueller tried to entrap Silverglate.)

Where Have All the Judges Gone? In other words, where is judicial oversight, which federal judges have the constitutional power to use. Such as, throwing out frivolous cases, based on vague and overly broad statutes; exercising judicial control over the zealous prosecutors who gleefully use perjury traps and that catch-all, when all else fails, obstruction of justice; and refusing to send defendants to solitary confinement, which the ACLU and United Nations both have declared to be torture. Unfortunately, the judges side more often with prosecutors than Lady Justice. (Many judges are former prosecutors.)

Once Is Not Enough. Habeas corpus, often used as an appeal for retrial after new evidence has been discovered while in prison, and coram nobis, used as an appeal after completion of a sentence to clear the defendant’s name, have both been severely narrowed such that it is extremely difficult to secure an order for retrial or dismissal of the original charges. And retrial, incidentally, must be done in front of the original trial judge, on the assumption that the trial judge will gladly admit his or her mistakes!


The final chapter concludes with an abundance of recommendations, aimed at correcting all of the above, ranging from encouraging judges to become the adults in the room to requiring Congress to be more scrupulous and precise when drafting and passing new laws. Judges, in particular, at the federal and appellate levels, the authors say, should have at least twenty years of experience practicing law before being appointed and that should include several years as criminal defense attorneys. They also recommend term limits for Congress.

Professor Dershowitz, in the foreword to Three Felonies a Day, states that criminal law at the time of the American Revolution was assumed to be so simple that it could be read and understood while running.*

Unfortunately, we are a long way from that simplicity. And we have a long way to go to get back to it.**


*Ayn Rand stated the principle simply: don’t initiate physical force (which includes fraud) against anyone, and that principle is embedded in the Bill of Rights. What we need is precise definition of the laws—but that would require a cultural commitment to reason, logic, and objectivity, which the postmodern academics are not about to return to.

**One issue not covered in Conviction Machine, but is in Professor Dershowitz’s Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo is the notion of “litigation privilege.” It says witnesses who file court papers are protected from defamation lawsuits, which means they can say most anything. Such filings are usually available to the press, which explains why we often see scurrilous headlines about prominent people being prosecuted. The prominent people have no recourse to defend themselves. They are guilty “by accusation.”

On Involuntary Servitude:“You’ll Do Something, Mr. Cook. . . . If You Don’t, We’ll Make You.”

The March 28 Time magazine cover story about Apple Inc.’s legal battle against the FBI and the lengthy interview with CEO Tim Cook are well worth the read.* So also is the earlier February 25 column on this case by Judge Andrew Napolitano.

There are several takeaways from the three pieces.

The FBI in February had ordered Apple to create new software to hack the encrypted iPhone of a dead terrorist. Apple contested the order, saying it would be a violation of civil liberties and that such software would put a master key in the hands of bad guys all over the world, including authoritarian governments. This, Cook says, is tantamount to banning encryption.

The case is now moot, because the FBI did what it should have done in the first place: it hired an independent firm to hack the phone, presumably achieved without creating new software. The order at the FBI’s request has been vacated, but the issues, including the possible future coercing of Apple and other tech firms, remain.

Tim Cook in the Time article and interview says that banning encryption means only the bad guys—such as terrorists—will have it, because encryption software is widely available beyond the borders of the United States. I doubt that Cook intended this, but he is making the same argument as the defenders of the Second Amendment: ban guns and only the bad guys will have them!

Cook says the court order amounted to a violation of the civil liberties of Apple’s customers, especially their right to privacy. Judge Andrew Napolitano made it an issue of due process, because Apple was not given proper notice, and, more significantly, a case of involuntary servitude.

Let’s take involuntary servitude first. The phrase comes from the Thirteenth Amendment to the US Constitution that outlaws slavery. The Supreme Court, however, has issued a number of rationalizations why a military draft and other forms of forced labor do not constitute servitude. The main excuse is that the amendment was passed specifically to apply to African slavery, not to other forms of forced labor. That is, all young, able-bodied men—and today, women—owe a duty, when so ordered, to perform work for their government and, if “necessary,” to go die for the old men (and women) in power in Washington.

The justices of the Supreme Court, not to mention legal experts and other intellectual leaders, both today and yesterday, have failed to understand that rights are absolute and universal. A freedom to take action, when not infringing anyone else’s freedoms, is a freedom to take action.

And slavery is slavery, as Judge Napolitano argued. Slave labor is precisely what Apple was asked to perform.

Indeed, the FBI vs. Apple case was an Atlas Shrugged moment on at least two counts. Several Apple engineers had stated that they would refuse to write such requested new software for the FBI, risking fines and imprisonment. Or quit. In effect, they were threatening to strike.

The working title of Ayn Rand’s novel was The Strike.

The case most amazingly was a Hank Rearden moment. I’m referring to the passage in the novel where the steel titan is ordered by James Taggart and his cronies to produce at a loss and therefore make the irrational work. When Rearden asks how he is supposed to accomplish that, Taggart responds, “Oh, you’ll do something.”

A major theme of the novel is that creativity and innovation do not work at the point of a gun, but that was what the FBI was asking and expecting Apple to do.

What our country needs more of today are business CEO’s with the integrity and courage of Mr. Cook—to stand up to their government.

In fact, this confrontation between the FBI and Apple would make an excellent business ethics case for future (or even current) executives to discuss.

The civil liberties issue that Cook talks about brings up the canard about privacy versus security. Cook wants to defend his customers’ privacy. The FBI and Washington don’t give a hoot.

When a crisis occurs, the politicians and bureaucrats scream security over privacy. Rights be damned. And the use of fear by the government usually succeeds in getting citizens to cough up their rights.

Cook points out that the government wanted Apple to create a master key and give up the privacy—which really means security and safety—of millions of people around the world in order to go after a “sliver” of bad guys.

Somehow the lawyers in Washington seem to have forgotten the training that taught them a most important principle of the free society, namely that it is better for a guilty person to go free—that would be Cook’s sliver of bad guys—than for an innocent one to be sent to jail.

Plus, as long as I am talking about involuntary servitude, this brings up the related Vietnam War era discussions of the prospects of an all-volunteer army. “There might not be enough volunteers,” the supporters of the draft yelped incredulously. Two answers were given, aside from the prickly issue of rights versus slavery: one, perhaps the war was not just and we shouldn’t be involved at all, or two, if the war is just and the country does not have enough volunteers, then the country deserves what is coming to it.

This last applies similarly to the FBI’s attempt to force Apple into involuntary servitude, for unjust means to a just end can never be moral. Coercing Apple to hack a dead terrorist’s phone to obtain information that might prevent the occurrence of a future event destroys the principle of justice and ethics.

If, however, in the name of justice the FBI refused to coerce Apple and, as consequence, failed to obtain such information, at the very least it could then stand tall and say that it upheld a cardinal principle of the free society.

The real—practical—issue here, though, is that the FBI (and government as a whole) needs to become proactive in creating better crossbows. In any weapons race, the bad guys will sooner or later obtain the latest crossbow, or encryption technology, which means the good guys must stay one step ahead of the bad. Apple has done, and is continuing to do, just that.

It is time for the government to do the same, instead of wasting money and resources trying the coerce Apple to correct the FBI’s own mistakes.

The FBI’s mistake was the order to reset the iPhone’s passcode, which resulted accidentally in the Bureau’s inability to access the phone’s information.

In the few weeks of this FBI standoff, Apple fortunately was not raided by gangs of armed, bulletproof vested SWAT teams. Apple is a high profile, well-liked firm and escaped—for now—such inexcusable tyranny.

Tennessee based Gibson Guitar a few years ago was not so fortunate.

After the SWAT teams left, Gibson CEO Henry Juszkiewicz, like Tim Cook, spoke up to defend his business. Never charged (for illegally importing wood from Madagascar and India), and, of course, no apologies given, Gibson was slapped with a fine and a gag order—to never again speak up to point out how unjust the US Justice Department is, which is to say: to never again attempt to defend itself.


*Dated March 17 in the digital versions.

Postscript. I cannot pretend to keep up with all the issues involved in this post’s encryption battle, but WhatsApp, the online messaging service, has just announced that it has encrypted all messages of its billion or so worldwide users. No one in the WhatsApp office can listen in to or hack what is being, or has been, said.

WhatsApp’s analogy to defend encryption is that what is now being done electronically has been done for centuries without the electronics, because it is just conversation that formerly was done at the water cooler or under an old oak tree. If the FBI wants the information that is being discussed, it either needs to subpoena the participants or send spies to the coolers and trees.

Spooks on the ground to gather intelligence. What a novel idea! It used to be done but, as I recall, budget cuts going back to the Clinton administration led to the post-9/11 hysteria about weapons of mass destruction in Iraq. The Bush administration had to rely on satellite photographs to verify information that should have been obtained with real people seeing with their own eyes.