Whomever is politically vulnerable might be arbitrarily and capriciously targeted by the government. This institutionalized overcriminalization of human action, by at least 4,450 federal statutory crimes, is what minimally defines a tyranny. Examining case studies that show how individuals were horrifyingly victimized by this Kafkaesque legalese minefield demonstrate just how bane and venal government agents behave, especially when they are trying to throw the book at you, and if successful, is followed up by them locking you up and throwing away the key.
Federal prosecution has shifted away from mala in se towards male prohibita, often using incredibly vague and broadly worded statutes to do it. As the author describes it:
“Then, about fifteen years in my law practice, I noticed a shift in the federal courts. More and more of my clients (physicians, bankers, academics, scientists, investors, newspaper reporters, accountants, artists, and photographers [the “three D’s” had by then given way to a more diverse clientele]) were being investigated and prosecuted for conduct that neither they nor I instinctively viewed as criminal. As I prepared to defend clients against the charges, I could not rid myself of the unsettling notion that the federal criminal laws were becoming vaguer and harder to understand with the passage of time.”
Despite the already unfair prosecutions of those “three Ds” (drugs, draft, and demonstrations), Silverglate tells us that it has been vastly expanded against those who didn’t cause harm resulting in any victim. For instance, consider Morissette v. United States (1952), a case where Morissette has salvaged some scrap metal in violation of an obscure federal statute. Silverglate explains that:
“It’s important to note that the judge’s interpretation of the law departed from centuries of English common law tradition, an evolving body of judge-made interpretative law with ancient roots, based on human experience and common sense. The common law tradition, with rare and narrow exceptions, does not punish those, like Morissette, who act with innocent intent. This approach to criminal law contains a vital moral component – our society punishes only those who intentionally rather than inadvertently violate the law.”
In other words, mens rea must be demonstrated by the government. If you take even a casual gander at several other U.S. Supreme Court cases, you’ll see quite easily how the lack of specificity in the statutes gives the government enough leeway to at least prosecute, if not also convict, defendants all too easily. In Cox v. Louisiana (1965), the Court held that “breach of the peace” statutes cannot be used against street demonstrators, effectively censoring their free speech (Edwards v. South Carolina in 1963 ruled very similarly). In 1979, United States v. Garber held that using a criminal case to prosecute what should have been considered by the government as a civil tax matter regarding the definition of what a “capital asset” is, was deemed by the Court as an “inappropriate vehicle” for doing so. Branzburg v. Hayes (1972) revealed that journalists are compelled to testify before a federal grand jury without enjoying “reporter’s privilege,” thus rendering it nonexistent.
Most of this book is littered with very detailed case studies that are useful to learn from in bite-sized pieces. There there two whole chapters regarding how drug prohibition hurts doctors, such as Dr. William Horowitz in 2003 for ostensibly violating the Controlled Substances Act by prescribing certain painkillers, or Dr. Peter Gleason’s indictment in 2006 for prescribing a FDA approved drug simply because its active ingredient was GHB. Another two chapters are devoted to financial crackdowns, such as Martha Stewart being punished for her involvement in the ImClone stock trading case and Arthur Anderson (Enron’s auditors) being scapegoated by the Orwellian titled Department of Justice (DoJ). The KPMG tax shelter case was particularly interesting because it revolved around the notion that knowing the letter of the law is insufficient for compliance with it, for now, mere citizens must also know the intentions of the legislators when they pass bills into law (one would think that such interpretations regarding the potential intentions of the legislature would be a chief duty of the judiciary, but I digress). As Silverglate explains:
“But if the line between legal ‘tax avoidance’ and criminal ‘tax evasion’ is drawn according to someone’s view of what Congress in its heart of hearts ‘intended’, then the law indeed becomes a trap for the unwary (or even for the wary).”
It would appear to be the case that you aren’t necessarily going to avoid the beast of the criminal injustice system even if you followed the legal requirements perfectly, because to do so would be to imply that such rules are even knowable, hence the pervasive feeling of being stuck within a Kafkaesque hellhole. It also doesn’t matter if you are someone like Alfred Zehe or Walter Lachman and Maurice Subilia; if prosecutors want you, they’ll at the very least make life hard on you, even if it didn’t result in a conviction.
Why would any federal prosecutor persecute innocent people? What motivates a man to do something so horrendous and unconscionable to their countrymen like that? If we consider what Tim Wu had to say about this, perhaps everything suddenly becomes a lot clearer:
“At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity – say, Mother Teresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order, but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like ‘false statements’ (a felony, up to five years), ‘obstructing the mails’ (five years), or ‘false pretenses on the high seas’ (also five years). The trick and skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable ‘prison time,’ as one former prosecutor told me.”
So, like military drone operators, these lawyers consider playing God with people’s lives as just nothing any more different than playing a fucking video game; no wonder they are filled with so much hubris, acting as if they are masters of the universe. And then their apologists wonder why people like me refer to Dick the butcher’s quip from Henry VI, Part 2:
“The first thing we do, let’s kill all the lawyers.”
Needless to say, it’s more a statement of utter frustration than anything else, yet it perfectly illustrates the righteous indignation we all should have against such a collectively formidable enemy. As Silverglate explicates:
“The trend of ambitious prosecutors exploiting vague federal laws and pursuing criminal charges instead of oftentimes more appropriate civil actions, something that they could not readily get away with in many state courts, has been alarming enough, but it’s not the whole story. Indeed, the threat posed by federal prosecutors has become a veritable perfect storm lately, due to the convergence of this trend with the commonplace legal tactics that these prosecutors wield in order to get convictions in the vast majority of cases. Prosecutors are able to structure plea bargains in ways that make it nearly impossible for normal, rational, self-interest calculating people to risk going to trial. The pressure on innocent defendants to plead guilty and ‘cooperate’ by testifying against others in exchange for a reduced sentence is enormous – so enormous that such cooperating witnesses often fail to tell the truth, saying instead what the prosecutors want to hear. As Harvard Law School Professor Alan Dershowitz has colorfully put it, such cooperating defendant-witnesses ‘are taught not only to sing, but also to compose.’”
What better way than to socially engineer a snitch-friendly society? Manipulate defendants by artificially lowering their switching costs so as to entice them to betray their loved ones and associates by appealing to their sense of marginal utility, and then you have a trapped population right where you want them: compromised. Silverglate continues:
“Wrongful prosecutions of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career. Whole families have been devastated, as have myriad relationships and entire companies. Indeed, one of the most pernicious effects of the Justice Department’s techniques – too often given warrant by the courts – is that they wreck important and socially beneficial relationships within civil society. Family members have been pitted against one another. Friends have been coerced into testifying against friends even when the testimony has been less than honest. Corporations have turned against employees and former partners to save the companies from obliteration, following scripts entirely at odds with the truth and subject to the sole approval of federal prosecutors. Newspaper reporters have been pitted against confidential sources. Artists, including those critical of the government, have been subjected to Kafkaesque harassment. Lawyers and clients have found themselves adversaries, as have physicians and patients, where enormous pressure have been placed on the ill to turn against those in whose capable professional hands they placed themselves in search of treatment. No society can possibly benefit from having its government so recklessly attack and render asunder such vital social and professional relationships.”
This is his most important observation. When taken into account alongside John Gatto’s description of the average government school graduate, I think you can begin to see the how the “prison-without-bars” is really put together. With regard to so-called “national security-related” cases particularly, Silverglate says:
“The lesson of all of these cases, and countless others like them, is clear enough, even if the statutes are not. The Department of Justice has the tools to charge a wide range of members of civil society with serious national security-related violations, even when those alleged violations do not, by any reasonable stretch of the imagination, truly pose a danger to the nation’s security. More striking, however, is the fact that these statutory and regulatory tools do not tell the average citizen quite what it is that they need to avoid doing in order to stand clear of the government’s snare.”
While all of this explains the results of unmitigated prosecutorial glee, it is insufficient for explaining the cause of it. I offer the following case study as a possible answer:
“In 1995, the Department of Justice filed a civil lawsuit against the ABA alleging that it had violated the nation’s anti-trust laws in the way it accredited law schools. The anti-trust laws seek to prevent power centers of industry from obtaining a stranglehold over particular areas of commerce that allows them to maintain artificially high prices – the classic monopoly. The DOJ alleged that the ABA accredited law schools in a way that kept the costs of operating such schools artificially high. This, in turn, allegedly ended costing consumers (law students and their tuition-paying families) more than would have been the case if legal education operated in a free market, unfettered by the monopolistic practices supposedly imposed by the ABA.”
So, was the DoJ actually correct here, or were they merely using it as a cover story to persecute the noble ABA? Silverglate continues:
“The ABA’s Section of Legal Education and Admission to the Bar vigorously disputed the DOJ’s claims. The ABA had long defended its accreditation standards as necessary to keeping the quality of legal education high and to protect the public from poorly educated lawyers. The profession’s internal efforts to maintain some kind of quality control over professional standards and competence was part of a long-term trend, commenced in the 19th century.”
In light of the fact that the ABA was founded in 1878, does that imply that most practicing lawyers before the War Between the States were “poorly educated” or otherwise incompetent? Although Silverglate goes on to describe the utter pettiness of the DoJ towards the ABA, it was never judicially answered whether the DoJ’s indictment was factually correct. If you consider that the Texas Board of Law Examiners requires all applicants to first earn a J.D. degree from an ABA accredited law school before even registering to take the Texas Bar Examination, then perhaps there is a degree of truth to at least a portion of the DoJ’s claims here (as if that wasn’t bad enough, you’re also required to be fingerprinted, so kiss another chuck of your individual privacy goodbye). No wonder The Federalist Society has sprung up as the premier ABA watchdog! Unfortunately, Silverglate champions the ABA:
“Historically, the independent bar has acted as a counterweight to government power. In recent decades, however, it has been subject to increasing pressure and intimidation under formless statutes applied recklessly to the lawyer’s craft. Thus far, the independent bar has survived, but its vulnerability is palpable.”
If he were younger I would critique his naivete, but considering that he is an old hand at this, I don’t know what else to say other than consider the source.
Not much is offered by Silverglate in terms of dealing with this systemic problem, mainly because most of his suggestions are all aimed at government agents doing one thing or another. I did find this gem, though, directly applicable to the alternative media:
“Journalists also should be far more skeptical when reporting, as truth, the testimony of witnesses who have been pressured, with threats and/or rewards, to suddenly turn on former colleagues and claim activities that they themselves engaged in and defended for a long time suddenly appear to be criminal. Testimony and sentencing deals must be scrutinized by an independent press, not by Fourth Estate lackeys. Rewards given to witnesses by prosecutors, often carried out by sentencing judges, in exchange for testimony against others should be viewed as bribery or threats. Indeed, the practice should be abolished altogether, either by court rule or congressional legislation. Shouldn’t the press be aiding that effort? After all, no self-respecting legal system, especially one plagued by vague laws, can tolerate such tactics and still claim to value truth and justice.”
I’ve been trying to lead by example on this by bringing transparency to such stories like Adam Kokesh’s various legal troubles. Unfortunately, anyone who tries to do this in good faith is unfairly decried by useful idiots as somehow being a government agent, without any proof to substantiate that nasty accusation whatsoever.
Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent is a horrifying haunted house of government malfeasance. Whether it stems from charges of obstructing of justice, contempt of court, or destruction of evidence whose very possession of it itself is illegal, plea bargaining is always the most important tool in the prosecutor’s arsenal. Despite libertarian websites encouraging defendants to never take a plea, Free Staters like Derrick J admitted to ending up taking a plea deal anyway. Although I did find Silverglate’s brief statement in passing that, to paraphrase, state criminal jurisprudence is still bound by state legislation and common law principles as opposed to the out-of-control federal system as it has evolved, to be a tad odd and quite possibly not true, I still think that this book is primarily a contemporary history of the misdeeds of government, and for that reason alone I think it is worth your time as a political dissident to read it, just so you can get a feeling for how the government behaves, even if you aren’t planning to monkeywrench anything anytime soon. For a more glowing review of this book, be sure to read Wendy McElroy’s article on it.
The Last Bastille 