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.”

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.