Fifth installment of a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.
This week, I’ve had the pleasure of guest-blogging on the Conspiracy and expanding upon discussions from my book, Three Felonies a Day: How the Feds Target the Innocent. I’ve examined the Supreme Court’s skepticism toward honest services fraud; aggressive prosecutors using malleable terrorism laws to target unpopular lawful expression; unwary businessmen becoming financial scapegoats; and the lack of media scrutiny over the Justice Department’s overreach. And this barely scratches the surface of the problems caused by investigations and prosecutions based on vague federal criminal statutes and regulations that encompass much ordinary and innocent activity.
A Heritage Foundation study published in June 2008 found that over 4,450 federal crimes exist, and there’s no doubt that number has increased since. (Recall the three separate federal statutes criminalizing “material support” of terrorism, and the joint NACDL-Federalist Society letter (PDF) pointing out to Congress the statutory redundancy of the Fraud Enforcement and Recovery Act of 2009.) With many of these statutes near-impossible for the average citizen (or, I might add, the above-average lawyer) to understand, and many lacking important “mens rea,” or intent requirements that are common to state but not federal law, the average professional going about his or her daily business could become the target of federal authorities.
How do I know this? For one thing, because it nearly happened to me.
In the early 1980s, the Boston United States Attorney’s office launched a top-to-bottom corruption probe into the administration of Boston Mayor Kevin H. White. It was obvious that then-U.S. attorney William F. Weld—who would later serve in both appointed and elected high offices—was gunning for the scalps of as many city hall officials as he could gather, in the hope of “climbing the ladder” and eventually reaching the mayor himself. In Three Felonies a Day, I tell the tale of Weld’s stretch of federal money laundering laws intended to ensnare White’s friend—and my client—Theodore Anzalone for a series of transactions that did not clearly violate federal statutes and regulations as they existed at the time. The goal was to pressure Anzalone to “sing” and land his friend—the great White—in federal prison. (Details of this sordid tale can be found in a book excerpt published by the Boston Herald.)
As Weld’s investigation unfolded, lawyers for various potential witnesses and targets would get together for weekly meetings to compare notes, discuss what we believed subpoenaed witnesses were saying to federal agents or to the grand jury, and determine what it all portended for our clients. At one of these meetings, a lawyer with intact ties to the U. S. attorney’s office told the group that he had received informal word that the government viewed our meetings as possibly constituting an “obstruction of justice.” Our goal, after all, appeared to be—and, indeed, was—to prevent prosecutions or, if prosecutions eventuated, then to defeat them.
Thinly-veiled intimations of an investigation and perhaps prosecution of the lawyers were in the air. I became volcanic and suggested that the bearer of these tidings convey back to his source that I, for one, would be happy to test the contours of the federal obstruction of justice statute under the facts at hand.
The threat—if it was in fact a threat, which seemed fairly likely to me—did not go any further. Yet subsequent developments in federal criminal law, some of which I describe in Three Felonies a Day, have made me rethink my youthful bravado.
In Boston, for example, attorney William Cintolo was indicted in 1984 for obstruction in connection with his representation of a number of figures in Boston’s organized crime underground. Members of the defense bar were shocked that Cintolo’s performance of his duties during the grand jury investigation was transmogrified by federal prosecutors into an obstruction, and we got together to file an amicus brief on his behalf. Our effort failed in both the District Court and the Court of Appeals for the First Circuit. Suddenly, defense tactics that we deemed perfectly reasonable were declared a crime, and Cintolo was sentenced to prison and disbarred. (He was quickly re-admitted after he emerged from prison, perhaps a sign that the Supreme Judicial Court of Massachusetts saw through the prosecution in a manner that the First Circuit did not.)
In 2006, another Boston lawyer, Michael Greco, while president of the American Bar Association, was threatened with criminal contempt for the ABA’s arguable failure to implement, in every detail, a consent decree in an anti-trust case. The ABA’s conduct was arguably justified, even correct, but the feds sought to achieve their ends by threatening indictment rather than by seeking a clarification from the court.
And in a 2007 case arising in Greenwich, Connecticut, the feds indicted a respected local lawyer, Philip Russell, for obstruction. During the course of his representation of the venerable Christ Church, he destroyed the hard drive of a church-owned computer onto which the church’s music director had placed images of child pornography. Since child pornography is considered “contraband” in federal law—material that it is not lawful for a private party to possess under any circumstances—Russell did what I and many other lawyers would have done. The alternatives all would likely have resulted in either the Church or lawyer Russell committing an ongoing federal possessory felony. Besides, the computer was not yet the subject of a subpoena, and Russell had no reason to believe that any criminal investigation was underway.
When I undertook to finally write the book after nearly two decades of taking notes, I was struck by the broad sweep of the federal power to indict even the innocent, as well as their lawyers, by resort to vague fraud and obstruction statutes. Since virtually everybody was at risk— physicians, investment bankers, journalists, accountants, lobbyists, performance artists, and public officials, to name a few—I felt that this cause just might initiate a rare coalition across civil society, sweeping from the left to the right of the political spectrum: Liberals, conservatives, libertarians, and all shades in between.
Thus far, I’ve been elated, and sometimes even a bit surprised, at the reception it has drawn across the political spectrum.
I have had only one major prior experience where disparate political factions have come together to fight for liberty. In 1998, Professor Alan Charles Kors and I co-authored our book, The Shadow University: The Betrayal of Liberty on America’s Campuses (The Free Press, now in paperback from HarperPerennial). The book was an exposé of a new regime that began to arise on American college campuses in the mid-1980s (about the same time I noticed the change in culture at the Department of Justice), characterized by campus speech codes and kangaroo courts to “try” students. A year later, as aggrieved students and even professors started to come out of the woodwork, we created The Foundation for Individual Rights in Education (FIRE), a tax-exempt foundation dedicated to the restoration of liberty, fairness, and academic freedom in higher education. While for some years FIRE was accused on the left of being part of some vast right-wing conspiracy to bash liberal academic institutions, administrators and faculty (liberals, after all, do have a far stronger toe-hold in higher education than conservatives), FIRE has in recent years come into its own and has been recognized as the utterly non-partisan civil liberties organization that it always has been.
It is my hope that a similar nonpartisan effort will result from Three Felonies a Day and from all of the other recent reporting and writing being directed to the phenomenon and its victims. The problems described in the book, and expanded upon in these blog posts, certainly cry out for coordinated action. And the seeds sown thus far have been encouraging; recognition that this movement has no ideological allegiances other than the preservation of liberty is a pivotal first step.
Perhaps more daunting, though, is the feds potential response. Reading the obstruction of justice statute again—making a potential felon out of anyone who “corruptly...influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice”—in light of the feds’ recent interpretations and Congress’ emendations, I have an ominous sense that, this time, an indictment would be no idle threat. The horror stories chronicled in Three Felonies a Day (not to mention the manuscript’s out-takes) give me ample cause for concern.
But that’s a risk all Americans engaging in this fight must be willing to take. After all, if you’re going to commit three arguable felonies each day, they might as well be socially and politically worthwhile.
william jones says:
Before it was just a catchy website name. Now it’s an actual conspiracy around here.
I might be obstructing justice just by typing this.
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December 18, 2009, 8:59 amAlan Gunn says:
I haven’t read all the comments on your previous posts, so this may already have come up. But in case it hasn’t, here goes.
You make a strong case, but it seems to be based mostly on statutes that are vague. While that’s a serious problem, it’s not the only source of overcriminalization. The CPSIA, for instance, isn’t particularly unclear, as statutes go, but it makes federal felons of millions of people who have done nothing wrong. Anybody who folds a sheet of paper into the shape of an airplane and gives it to someone, for example, violates the law (which requires that the product be tested for lead and some other things and that it meet labeling requirements. (All handmade children’s products are outlawed by this law, because the required testing destroys the product, so no one-of-a-kind children’s product (some clothes aside) is legal any more.) Here, I think, the problem arises not because the law is unclear but because it criminalizes behavior so common, and so obviously harmless, that most people can’t imagine that it would be illegal, and those who are told that it is usually respond by saying something like “they wouldn’t really enforce that, would they?” (Answer: not unless you’ve offended them in some way.)
There are also problems with statutes that impose serious penalties for fairly minor (though real) offenses, which are prosecuted only if the authorities decide they don’t like you. Things like the crime of lying to federal investigators, which must happen thousand of times a day, but which are prosecuted only occasionally, as in Martha Stewart’s case (apparently because the authorities had a weak case on insider trading and decided they ought to send her to jail anyway).
If you’ve got the time, there are probably several more books to be written about this problem.
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December 18, 2009, 9:42 amWidmerpool says:
Where is our Charles Dickens to write the modern Oliver Twist? I think I would make a suitable villain–although, perhaps, a bit too pooterish for modern tastes.
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December 18, 2009, 10:02 ampete says:
So do you have specific recommendations for rewriting these laws or are you just in favor of getting rid of them?
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December 18, 2009, 10:05 amRowerinVA says:
Mr. Silvergate’s credibility is hurt by this statement:
And his failure to cite the actual source documents:
http://www.justice.gov/atr/cases/f216800/216820.htm
http://www.justice.gov/atr/cases/f216800/216816.htm
http://www.justice.gov/atr/cases/f216800/216819.htm
... which show that the ABA declined to contest the allegation that it did, in fact, massively violate (not just violate a “detail” of) its 1996 antitrust consent decree regarding price fixing and various other fixing of aspects of law school competition. Not only that, but the ABA paid a $185,000 contempt penalty for the violation, according to those documents and the court’s entered order. Are we to believe that the ABA, which — to state the obvious — has no shortage of legal representation, consented to a false statement about its own contempt?
Anyone who knows ABA law school accreditation procedures knows that the ABA was in fact violating the original decree, which is available here: http://www.justice.gov/atr/cases/americ1.htm
So it appears that the DOJ wasn’t so crazy after all. As to whether DOJ threatened criminal contempt, these documents don’t explain what was discussed orally; however, if the ABA president had taken the position that he was aware of the violation but that he wasn’t willing to correct it, that would indeed have been an appropriate situation for criminal contempt, wouldn’t it? And if the violation involved price fixing (which the court’s 1996 and 2006 orders say it did), then a criminal indictment would have been appropriate, wouldn’t it; price fixing is per se illegal and, if done with the appropriate mens rea, is prosecuted as a criminal violation.
Finally, this is a terrible example if Mr. Silvergate’s point is to claim vagueness and a recent change in practice. Fixing prices is clearly illegal; the statute involved (Sherman Act section 1, 15 USC 1) has been the same since 1890, and no business person or lawyer is unaware of these facts.
Mr. Silvergate seems to think that DOJ should have gone to the court to “clarify” that price fixing is illegal. The court would have laughed. No wonder the ABA settled.
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December 18, 2009, 10:57 amMike McDougal says:
If I just hide in my house, will I be safe?
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December 18, 2009, 11:05 amChris Travers says:
I have actually had several relatives targetted in manners similar to what you describe in different professions. One was a doctor pressured to plead “no contest” to medicare fraud for an honest billing code (NOT amount) error. Another was a lawyer tried for perjury for his work in defending his client (who was a member of the Communist party). While he won that case, the feds came back after him the next year for tax fraud and eventually sent him to prison for a year (he was readmitted to the bar as soon as he got out, suggesting that the judicial court of Washington State saw the prosecution differently).
Since the lawyer is no longer practicing, I will mention that his name was John Caughlin. He later was awarded the William O Douglas award by the ACLU.
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December 18, 2009, 11:23 amAdam J says:
I dunno, Cintolo’s actions seem pretty damning based on the facts stated as stated in the appeal– he was trying to convince his immunized client to not testify and therefore commit criminal contempt before the grand jury in order to protect his other client, the mob boss who presumably paid Cintolo.
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December 18, 2009, 11:32 amChris Travers says:
Adam J:
Cintolo was acquitted of “obstruction of justice,” right? He was convicted only of one count of “conspiracy to obstruct justice.” The appeals court opinion reviews evidence which seems to include those which the jury didn’t find persuasive.
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December 18, 2009, 12:00 pmAllan says:
A couple of points:
1. Attorneys should not assist their clients in committing crimes.
2. I am a bit dubious about claims such as these from lawyers who help their clients behave in unethical or immoral behavior, even if that behavior is not criminal. I have little sympathy for either the client or the attorney if the transactions resulted in gain due to the official’s position.
Too many of our politicians have legally lined their pockets and the pockets of their friends through legal graft and corruption. Anything we can do to stop this is good. I am for transparency.
If an elected official chooses to do something that will help his bottom line, his friends’ or family’s bottom line, or his election chances (greater campaign contributions), I say it should be transparent. Let’s just make the failure to report something like that a crime (say if the aggregate amount during a year is more than $5,000).
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December 18, 2009, 12:06 pmAllan says:
And a clarification:
If an elected official has to ask his lawyer if he might go to jail for doing something because it benefits him, then, regardless of the answer, the elected official should probably not do it.
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December 18, 2009, 12:10 pmenjointhis says:
Fascinating posts, these. The book is one of the few gifts I’ve requested by specific title.
It brings to mind the Mass. attorney who was convicted of money laundering ... based on an attorney-client communication that was improperly recorded by the Plymouth Co. Sheriff. But everything MUST have been proper, because Justice O’Connor said so. Pshaw.
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December 18, 2009, 12:14 pmThe Thin Line Between Activism and Obstruction | Liberal Whoppers says:
[...] the original post here: The Thin Line Between Activism and Obstruction Share this [...]
Bob from Ohio says:
I’d say that was obstruction of justice. You were trying to co-ordinate what witnesses were saying in an on-going investigation.
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December 18, 2009, 1:04 pmChris Travers says:
Bob from Ohio:
That doesn’t necessarily follow, does it?
It would be VERY HELPFUL for a lawyer to know what statements were given to investigators and the grand jury if a case ever went to trial even if this information was not passed along to clients.
The information could be used for all sorts of things including, “what questions do I ask this witness” and “which witnesses do I want to call.”
I think it would be obstruction of justice only if there was an overt effort to coordinate witness testimony to the grand jury. Doing basic intelligence by coordinating with other lawyers on pretrial strategy doens’t seem to meet that, IMO but IANAL.
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December 18, 2009, 1:09 pmElliot says:
Are DOJ attorneys more or less competent than private attorneys? These would be the private attorneys who face them in court.
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December 18, 2009, 1:50 pmDavidwhitewolf says:
It’s in a slightly different context, but have you read Unintended Consequences by John Ross?
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December 18, 2009, 2:10 pmUncle Fester says:
This is directly connected to another issue. There’s too much immunity for prosecutors and judges. Prosecutorial misconduct should be punishable at the same level for the crime they were prosecuting. Going to withhold exculpatory evidence in a murder trial? Welcome to life in prison, pal. Whatever good arguments exist against that position, they all need to tempered with the recognition that there are no meaningful constraints on bad behavior by judges and prosecutors.
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December 18, 2009, 2:47 pmTweets that mention The Volokh Conspiracy » Blog Archive » The Thin Line Between Activism and Obstruction -- Topsy.com says:
[...] This post was mentioned on Twitter by andrew and Eugene Volokh, Eugene Volokh. Eugene Volokh said: The Thin Line Between Activism and Obstruction: Fifth installment of a five-part series on Silverglate’s book, .. http://bit.ly/8DBKeh [...]
Bob from Ohio says:
I am all for eliminating (or limiting) immunity but that goes way to far.
Obstruction of justice does not equal murder.
No, but an investigation into exactly what they were doing is not out of bounds at all.
The chest thumping bravado of someone who says
is not warranted.
These lawyers were skating close to obstruction at least.
Lawyers for targets getting together i son ething. Lawyers for witnesees is far more sinister. Certainly worthy of an investigation.
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December 18, 2009, 3:23 pmShelbyC says:
Yeah, but who’s going to procecute them? We should make it a qui tam thing.
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December 18, 2009, 3:48 pmpete says:
Lawyers already do a pretty bad job policing themselves.
I did think of another case that might qualify for Silvergates vague laws and that is the Tom Delay prosecution. It took three grand juries to get the indictments (one refused to indict) and a judge threw out the conspiracy to violate election law charge. The other charges (still pending four years later) are money laundering and conspiracy to commit money laundering. I think there were some appeals based around the related laws being too vague.
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December 18, 2009, 4:10 pmJeff R. says:
BobfromOhio: If that murder trial is a capital one, then it is murder. Or attempted murder, at least, depending on at what stage the crime became exposed. Also, there are crimes short of murder that can carry life sentences.
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December 18, 2009, 4:15 pmPatHMV says:
I once had to attend CLE sponsored by my state’s association of criminal defense attorneys (I was either an ADA at the time or had recently left that job; I went because it was the only one on Dec. 31, and they had to take me in under bar regulations for qualifying CLE). They were selling t-shirts and sweat-shirts at a table outside.
All of the shirts featured the slogan: “Nobody talks, everybody walks.”
For far too many criminal defense lawyers, it’s not about the law, it’s about getting the client off at all costs, no matter what.
I apologize that I have not had time this week to look at all the posts. I wonder if Mr. Silverglate’s book traces the history of any of these excessive felonies. I suspect that a number of them were enacted to close up loopholes which criminal defense attorneys had used to gain dismissals for clients who were, in fact, real criminals.
I’m sympathetic to the idea that we have too many federal statutes, but I’m sorry to say that having a member of the criminal defense bar say so does not do much to prove the issue for me.
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December 18, 2009, 5:45 pmChris Travers says:
Bob from Ohio:
I think the implication was that these witnesses were presumed but not known to be targets of the investigation.
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December 18, 2009, 6:17 pmChris Travers says:
Bob from Ohio:
Playing devil’s advocate here, wilfully withholding exculpatory evidence in a capital case of any sort seems a lot more serious in my book to a number of current federal capital crimes.
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December 18, 2009, 6:27 pmArthurKirkland says:
I am worried at least as much about single-minded, “win at all costs” prosecutors as I am about single-minded, “win at all costs” defense lawyers.
Goes with the territory of the libertarian-liberal alliance.
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December 18, 2009, 7:11 pmLarryA says:
So you have a right to be represented by an attorney, as long as he or she doesn’t piss off the government.
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December 18, 2009, 11:56 pmdrunkdriver says:
While I think there’s something to Mr. Silverglate’s criticisms of vague statutes, some of his parade of horribles isn’t all that horrible– the ABA case is quite different from how he portrayed it. His exasperation at the US Attorney for suspecting meetings among lawyers and “witnesses”/potential defendants during a corruption investigation were designed to obstruct justice, strike me as very overblown. The prosecutors would have to be idiots not to be suspicious. In any event, he himself admits nothing ever came of it.
I don’t have time to read fully about Weld’s decades-old prosecution efforts, but it does appear he was able to convict a number of people for serious activity such as extortion.
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December 19, 2009, 1:43 pmObstruction-of-justice charges says:
[...] can serve prosecutors as a versatile weapon, notes Harvey Silverglate, guestblogging at [...]
Another_PD says:
That’s exactly what it’s all about–representing your client to the hilt. Laws aimed a preventing defense attorneys from getting guilty clients off are reactions to the inability of prosecutors to get convictions. Prosecutors don’t just automatically deserve convictions–they must prove their case beyond a reasonable doubt. A criminal defense attorney is ethically bound to zealously represent a client within the bounds of the law, regardless of whether the client committed a bad act.
There are no guilty clients until AFTER the trial–something I shouldn’t have to explain to a former ADA.
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December 21, 2009, 7:46 amAllan says:
Let’s make a deal:
If attorneys for defendants cannot talk to each other and defendants/witnesses cannot talk to each other, then prosecuting attorneys cannot talk to each other, and policemen cannot talk to each other.
I have no qualms with the defense planning. I have even less of a problem with making the state prove its case (no-one talks, everyone walks). The deck is already stacked in the states’ favor.
My issue is with attorneys who help public officials skate along, lining their pockets with money from graft and corruption, even though there actions might violate no law.
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December 21, 2009, 8:50 amRoy says:
Just wondering whether prosecutors should face action against their license for over-reaching...
My broadest experience is as a military lawyer in the context of operations and the Law of War. I tell soldiers that when they’re on the battlefield, they are clothed with the authority of the US government to use their weapons to carry out their mission, which can involve killing people and destroying property when and to the extent necessary. I explain that their actions are attributed to our government, and that when they are acting within their role as agents of the government, they are immune from any action for their deeds.
But I then explain that what they do outside of their mission is on them. If they kill someone, destroy something, or seize property other than in accordance with the Law of War and their mission, it’s on them. They don’t have the armor of combatant immunity, they’re buck naked before the law and their command.
Why not lawyers in the courthouse? They too are exercising the power of the government, on behalf of the government. If they use that power in ways that are contrary to the interests of the public — which are by definition always in line with Constitutional rights of the persons prosecutors deal with, whether witness or accused — then they should be seen as stripped of their immunity from adverse action and subject to whatever disciplinary action their conduct merits.
It may be that our courts lack the moral courage of military commanders to examine the conduct of their officers, or fear that by holding them to some standard they will be exposing prosecutors to some huge volume of attack by the enemies of the public good. Moral courage is a good thing and so should prevail over its opposite. And the brilliant minds in our legal community should be able to come up with some process to separate the wheat from the chaff of spurious claims of misconduct.
Could judges themselves initiate complaints of misconduct? Could such claims then be referred to the bar for investigation? And the results of the investigations be sent to an appellate court for review and action? Just a thought...
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December 21, 2009, 9:34 amHarvey Silverglate says:
Allow me to respond to RowerinVA by first pointing out that, in the process of distilling years-long work into a series of blog posts, a certain degree of nuance, context and detail is inevitably lost. I believe this has resulted in the comment above, which points out some aspects that were not included in the blog piece. If indeed my credibility is determined by my conclusion—that the threat of criminal contempt directed to the ABA and its officers was an over-the-top flexing of DOJ muscles based on cutting-edge anti-trust legal theories—then I think my credibility emerges intact.
The more detailed discussion, which I think responds to my critic’s triumphal and a bit over-heated attack, can be found in Three Felonies a Day (pp 181–185). While a civil contempt motion would have been a perfectly reasonable method for resolving differing interpretations of an agreement settling a cutting-edge anti-trust lawsuit, threatening criminal contempt was a clear overreaction. But, considering the frayed relationship at that time between the ABA and the Executive branch, perhaps it isn’t surprising. The ABA had given an unprecedented number of low ratings to Bush administration judicial nominees, and this arguably retaliatory response came at the very end of the consent decree’s term. And, as I lay out in Three Felonies, there exists a culture within the DOJ that makes prosecutors feel that they can flex their muscles in a threatening manner even when wholly inappropriate. Given the ramping up of the stakes with the threat of criminal contempt, the DOJ reduced the chances that the ABA would seek judicial clarification of its obligations. The ABA, in other words, just folded, like so many other criminal defendants who plead guilty rather than challenge the government’s claims.
A conclusion that the ABA was in fact in contempt of the settlement agreement is hardly clear. It is important to understand the nature of the alleged violation of the consent decree in deciding whether a threat of criminal contempt was or was not appropriate. Consider this passage, excerpted from Three Felonies.
I should stress that I am not critical of RowerinVA’s evident hostility to the ABA. I have practiced law for four decades without joining the organization; it’s just not my cup of tea, although it has done much good work. I make no brief for the ABA, but I do believe that an independent bar is essential for the survival of democracy, liberty and our system of checks-and-balances. It is very dangerous to countenance the DOJ’s wholly inappropriate threat of criminal sanctions simply because government prosecutors are not wholly satisfied with how high the independent bar jumped when the DOJ said “jump!”
And I should also note that my last name is spelled SILVERGLATE, not SILVERGATE. It is a name made up by immigration officers at Ellis Island trying to transliterate a Russian name not easy to pronounce in English. But I forgive RowerinVA for his mis-spelling; it’s a common occurrence.
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December 22, 2009, 6:12 pmWeekly Web Watch 12/21/09 – 12/27/09 « EXECUTIVE WATCH says:
[...] Harvey Silverglate, well-known defense attorney, has been blogging at the Volokh Conspiracy about the range of crimes that federal attorneys have the authority to prosecute. Silverglate is especially concerned about obstruction of justice and honest services fraud statutes, which he contends can be used to launch a federal investigation of just about anybody, including him. [...]