RowerinVA: 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.htmSo 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.

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.

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…

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.

PatHMV: 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.

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.

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.

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 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.

I am all for eliminating (or limiting) immunity but that goes way to far.

Obstruction of justice does not equal murder.

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.

Lawyers for targets getting together i son ething. Lawyers for witnesees is far more sinister. Certainly worthy of an investigation.

I think the implication was that these witnesses were presumed but not known to be targets of the investigation.

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.

ShelbyC: Yeah, but who’s going to procecute them? We should make it a qui tam thing.

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.

Uncle Fester: 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.

Yeah, but who’s going to procecute them? We should make it a qui tam thing.

Going to withhold exculpatory evidence in a murder trial? Welcome to life in prison, pal.

I am all for eliminating (or limiting) immunity but that goes way to far.

Obstruction of justice does not equal murder.

That doesn’t necessarily follow, does it?

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

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

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.

Widmerpool: Where is our Charles Dickens to write the modern Oliver Twist?

It’s in a slightly different context, but have you read Unintended Consequences by John Ross?

I’d say that was obstruction of justice. You were trying to co-ordinate what witnesses were saying in an on-going investigation.

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.

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

I’d say that was obstruction of justice. You were trying to co-ordinate what witnesses were saying in an on-going investigation.

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.

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.

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).

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.

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.

Alan Gunn: 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.

If I just hide in my house, will I be safe?

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 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.

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.