When Federal Prosecutors Go Bad

Life can become a nightmare for those targeted by federal prosecutors in search of scalps. Ask General Michael Flynn.  After reading two excellent books on federal prosecutors who have been willing to cross the line into misbehavior, I am having nightmares, too.

Licensed to Lie: Exposing Corruption in the Department of Justice (2014) is written by Sidney Powell, a defense attorney and former federal prosecutor. Three Felonies a Day: How the Feds target the innocent (2011 is by Harvey Silverglate, campus rights activist, attorney and prolific author.  Both tell you the dark side of the US Law enforcement system, at the DOJ and FBI, and among career prosecutors and investigators who become miscreants and hacks. 

Powell and Silverglate write about the horror faced by regular, even prominent citizens whom the FBI and DOJ destroyed, or tried to destroy, using their  unlimited resources and the trust of the courts and the public.  From the very beginning of the prosecution when the affidavits for charges are submitted to the court, the honesty and fairness of the prosecutors is tested, and all too often, ambitious and aggressive prosecutors betray that trust. 

Most of all, these books warn that the character and virtue of prosecutors are the critical factor in the proper conduct of a prosecution, the choice of target, the charge made, and the conduct of the discovery and the trial.  Prosecutors have all the cards, and if they don’t conduct an honest and fair prosecution, innocent people are harmed, destroyed by their striving for conviction at any cost, even by cheating or by abuse of the process.

With Robert Mueller on a general warrant fishing expedition to take down a president, its time to face the menace, the monster of mendacious and malicious prosecutors on the hunt with the resources of the government and the advantage of the assumption by the courts that they are reliable and honest, dedicated to justice. 

Some of the prosecutors featured in the two books are people whom Robert Mueller hired for his special counsel office.  The poster boy for abusive prosecutors is Andrew Weissmann, Mueller’s number one boy, a longtime ally who was in charge of the Enron prosecutions and the Arthur Anderson debacle that resulted in multiple appellate court reversals of convictions. Unfortunately, Weissmann had already destroyed the large accounting firm and damaged the lives and fortunes of its more than 10,000 employees.

Powell discusses others in the DOJ who were arrayed against her in the Enron and Arthur Anderson matters, who ended up in prestigious positions in the private sector or promoted with the DOJ after the dishonest and predatory prosecutions and other stunts.  Senator Ted Stephens lost his political career to a corrupt prosecution that was eventually nullified.

Harvey Silverglate relates his own experience of Mueller attempting to entrap him into suborning perjury when he was defending a Mueller target.  As Silverglate said in an interview  for WGBH (Boston TV) news, he wouldn’t trust Mueller, who has the attitude of a Grand Inquisitor, not the choirboy Marine portrayed by his leftist allies in the press.  Mueller has an uneven, sometimes incompetent record -- for example his Anthrax Letters investigation, the failure to convict Hell’s Angels on drug trafficking and his role during the Eric Holder time as Attorney General.

Prosecutors in the American system are charged to be exemplary in their role -- they are not mercenary destroyers, but rather represent the government and are tasked to be fair and judicious in their decisions to prosecute. They are also supposed to be guarantors of a fair trial; but unfortunately the incentives make some prosecutors unethical and low down mean, malignant, and mendacious in their practices and tactics.

Ms. Powell quotes The Center for Prosecutor Integrity list of misconduct that can terrorize targets of government prosecution, even if they are innocent:

Charging with more offenses and more serious offenses than warranted.
Withholding or delaying the release of exculpatory evidence.
Deliberately mishandling, mistreating or destroying evidence.
Allowing witnesses they know are not truthful to testify.
Pressuring defense witnesses not to testify.
Relying on fraudulent forensic experts.
During plea negotiations, overstating the strength of the evidence.
Making statements to the media that are designed to arouse public indignation.
Making improper or misleading statements to the jury.
 Failing to report prosecutor misconduct when it is discovered.  

In the real world of imperfect humans prosecutors are subject to a variety of pressures that make them forget their special status in the legal system as guarantors of justice.  Incentives such as gratitude of victims, favorable media coverage, career promotions for successful prosecutions, appointments to judgeships or election to high office can tempt stepping over these lines.

These two books narrate in relentless and compelling detail the misconduct by hack prosecutors, and the low down “sharp” tactics used to get convictions. Too often, the FBI and DOJ cheating that was apparent and even asserted to the court by the defense, subject to some inquiry, was allowed by a acquiescent court, sometimes motivated, it appears, by political pressure to allow a rogue prosecution.  That was clearly a factor in the Enron cases, but if politics enters, it can impact all kinds of cases and judges we would only hope to be impartial are partisans. 

Ms. Powell and Mr. Silverglate detail many cases of FBI and DOJ cheating on investigations and prosecutions, for example misrepresentations of affidavits to charge crimes and investigative interview summaries, called 302 reports, to the court.  I was most alarmed to see that judges are not inclined to properly supervise and test the claims of prosecutors, even after their deceptions were pointed out or should have been.   Courts offer great leniency to miscreant and dissembling government prosecutors for various reasons.  

Mr. Silverglate's book focuses on the problem of vague statutes that ensnared innocent people in prosecutions that were wretched examples of government prosecutor misconduct.  His examples come out of the panoply of federal statutes that are so vague that prosecutors and courts can invent crimes out of whole cloth.  You probably never heard of the despicable statute that creates a crime based on loss of honest services, There are wire fraud and drug regulations cases that result in prosecutions of business and professional people engaged in what should be considered normal activities. Silverglate relates stories of physicians, businessmen, and politicians conducting normal activities or routine affairs who were accused under arcane and tortured interpretations of fraud and corruption laws that were poorly written. 

Both Powell and Silverglate narrate with wrenching and horrific details in multiple cases.  I recommend that you read these riveting and revolting stories of prosecutor and law enforcement misconduct, purely evil stuff that ruined people’s lives.  But look under the bed and keep a light on.

Note: due entirely to an editing error, General Michael Hatden's name was used in place of General Michael Flynn's. Our apologies to readers and both men.

John Dale Dunn MD JD is an emergency physician, inactive attorney, Policy Advisor to the American Council on Science and Health of NYC and the Heartland Institute of Illinois.