Three Felonies a Day

by Harvey Silverglate

  Cintolo’s efforts to protect his client from both the government and the Angiulos were seen, instead, as having “the corrupt aim of frustrating a federal grand jury.” The lawyer’s long-understood and entirely proper role in our constitutional system, as an advisor to his clients rather than a government handmaiden, made no difference. “As citizens of the Republic equal under law, all must comply with the statute in the same manner,” wrote the court. But, of course, that plainly and simply cannot be true. Based on the structure of the criminal justice system and on the instrumental role they play in it, defense lawyers are charged with a highly specialized and very different task than prosecutors, police, judges, and laymen. Their vigorously representing the interests and rights of those fighting the government should not be seen as the crime of obstruction of justice.

  The Court of Appeals concluded its analysis with one of the least helpful tautologies imaginable: “Since the omnibus clause of the [obstruction of justice] statute quite clearly proclaims that all obstructions of justice are prohibited, we conclude that section 1503 gives ‘fair notice of the offending conduct’…which is all the constitution requires.” In a somewhat ironic concession, however, the court acknowledged the need for clarity in criminal statutes. One of the precedent cases it invoked in this regard was the First Circuit Court’s 1985 opinion, a mere two years earlier, in United States v. Anzalone. Recall how in that case the court praised the American criminal justice system as superior to the old Soviet Union’s precisely because the Soviet legal system penalized, under its “crime by analogy” provision, “any socially dangerous act [that] has not been directly provided for by the present Code.” With the Cintolo opinion, the Anzalone era had ended rather abruptly. The new era was announced without irony, much less shame.

  William Cintolo served 18 months in federal prison. Upon release, he worked as a legal assistant and applied for readmission to the Massachusetts Bar. To the surprise of many observers, he was readmitted in 1996 on his first application, filed as soon as he was eligible. It is rare for the Supreme Judicial Court of Massachusetts to readmit a lawyer so quickly when the offense underlying his conviction is as serious as obstruction of justice, much less in an “organized crime” context. More revealing still is the fact that Bar Counsel, the chief legal disciplinarian that supervises lawyers’ ethical problems, did not file an opposition to Cintolo’s application for readmission. After being readmitted, Cintolo has resumed a successful criminal defense law practice.

  Walter LaFreniere, the supposed victim of Cintolo’s betrayal, it should be noted, did not testify at Cintolo’s trial. Presumably the client’s own view as to whether his lawyer had acted on his behalf was not important to either the Department of Justice or the federal court. And in no other context did LaFreniere say that Cintolo’s representation worked against his best interests. Cintolo’s sin, in the end, was that he provided truly effective assistance of counsel, as is required by the Sixth Amendment. This principle of our legal system is often derided by laymen, until they find themselves in trouble and suddenly need the advice of a lawyer upon whose loyalty they can count.

  The American Bar Association (ABA), with more than 413,000 members, is the largest membership organization of lawyers in the United States, and it enjoys worldwide respect. In the U.S. it has the status of arbiter over a number of areas of self-regulation within the legal profession, including suggested ethical codes, provision of legal counsel to criminal defendants and impoverished citizens in certain civil matters, and other pressing legal and social issues. For more than half a century, the ABA has also evaluated U.S. presidents’ federal court nominees to help ensure excellence on the federal bench. In recent years, the ABA also has adopted more than a dozen policy positions critical of the federal government’s failure to protect constitutional freedoms in the fight against terrorism. The ABA has even weighed in against the vagueness of federal prosecution standards in state and local corruption cases, as discussed in Chapter One.

  Another important authority exercised by the ABA is that it supervises the law school accreditation process. 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 up 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.

  According to the DOJ’s 1995 complaint, the ABA allegedly kept law school tuitions artificially high by requiring law schools to engage in certain expensive practices. For example, it was alleged that the ABA required that professorial salaries be kept at a certain national median level, and that teaching loads for professors be severely limited. The ABA allegedly required law schools to provide professors with paid leaves of absence to conduct scholarly research, as well as low ratios of teachers to students. All in all, alleged the DOJ, the high cost of legal education could in part be attributed to the choke-hold the ABA had on the accreditation process, law schools’ need for accreditation to attract students, and the ABA’s abuse of this process in order to make life easy for the professoriate, who themselves had a self-serving lock on the ABA’s accrediting process.

  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. The ABA’s methods for establishing standards to assure the quality of legal education were doubtless controversial, and it was perhaps not surprising that the executive branch, long chafing under the power of the ABA to, for example, rank nominees to the federal bench, would strike out at the organization in some manner. An executive branch effort to break what it deemed the ABA’s choke-hold over law school accreditation and standards was, therefore, no great surprise to knowledgeable observers. Reasonable people will agree or disagree about the validity of the DOJ’s allegations and the social benefits of the ABA’s legal accreditation practices. Rather than test their respective positions in court, the ABA, facing millions of dollars in defense costs, and the DOJ, employing a cutting-edge legal theory, agreed to settle. A “consent decree” with a ten-year term settling the case was filed by the parties at the same time the complaint itself was filed by the DOJ. The U.S. District Court for the District of Columbia approved the settlement in June 1996.

  Ten years later, much had changed. It was a post-9/11 world, and the federal government and the organized legal profession were in a series of bitter clashes. The ABA was criticizing many of the federal government’s initiatives that the ABA considered unnecessarily and unconstitutionally elevated perceived security over the historic rule of law. In particular, the ABA took issue with the Bush administration’s frequent use of so-called “presidential signing statements.” With unanimous approval of the ABA Board of Governors, a bipartisan task force investigated the issue in the spring of 2006. The task force unanimously concluded that the abuse of such signing statements violated the separation of powers.23 These clashes ratcheted up the historic tension between federal administrations and the organized bar. That tension seemed to ooze out in the battle over the consent decree.

  As the consent decree’s ten-year termination date approached, the DOJ informed the ABA that it was not satisfied with ABA compliance with the settlement terms. In early 2006, the DOJ informed the bar association that it planned to fil
e a petition asking the court to hold the ABA in civil and possibly criminal contempt for allegedly violating the settlement agreement. The DOJ claimed, among other technical violations, that while the 1996 settlement required that “no more than half of the members of the [accreditation] Standards Review Committee be law school deans or faculty,” allegedly (and disputed by the ABA) one committee member was not a practicing lawyer but a faculty member whose presence on the committee in 2005-06 exceeded the 50 percent requirement.

  The ABA, represented again by its 1996 outside defense counsel, and the DOJ in the spring of 2006 entered negotiations lasting several months in order to resolve the contempt imbroglio. Boston attorney and ABA President Michael S. Greco had served as chair of the ABA Standing Committee on Federal Judiciary, which evaluates presidential nominees to the federal bench, in 1988. When the negotiations became bogged down and difficult (and increasingly expensive), Greco instructed ABA’s counsel to request an in-person meeting with the U.S. Attorney General, Alberto Gonzales, to discuss the matter. Accompanied by ABA defense counsel and ABA staff, Greco traveled to Washington to meet with Assistant Attorney General Thomas O. Barnett, of the Antitrust Division, who was accompanied at the meeting by numerous DOJ colleagues. During the lengthy and tense meeting, Barnett informed Greco that the DOJ was considering filing a petition with the court seeking a criminal contempt order against the ABA and its leaders.24

  The specter of government officials threatening the leaders of the nation’s premier professional association of lawyers with imprisonment, growing out of a dispute over technical compliance with some of the provisions of an anti-trust consent decree, was surprising to some, and caused outrage among others, at the ABA. Again facing millions of dollars in crippling defense costs, the ABA decided to settle the dispute, on the condition that the DOJ back off its insistence that the ABA admit to contemptuous conduct in connection with the 1996 consent decree. The DOJ agreed, and a settlement was reached.

  The settlement agreement, however, did not stop the DOJ from issuing a news release on June 23, 2006, alleging that the ABA’s conduct constituted civil contempt. In the news release announcing the agreement, the DOJ misleadingly stated that “the ABA acknowledges the violations” set forth in the DOJ’s petition for a contempt order.25 Before filing the final drafts of the settlement documents with the court, the DOJ had refused to show them, or the press release, to the ABA’s defense counsel. To correct the public record as it saw it, the ABA countered with a short news release issued June 27, 2006, in Greco’s name. The release noted that “contrary to the impression resulting from a press release issued last week by the Department of Justice, the stipulation executed by the parties and the order entered by the court make clear that there was no finding of civil contempt.”26

  The DOJ’s news release seemed to be another gauntlet thrown down at the feet of the nation’s premier bar association. “No one is above the law and those who do not comply with their obligations under court orders must be prepared to face consequences,” said AAG Barnett. “The Antitrust Division has sued many professional trade associations, which, like the ABA, have violated the antitrust laws,” observed Anne K. Bingaman, also an assistant attorney general in the Antitrust Division. “Lawyers must keep their own house in order as well.”27

  To the public, perhaps these dueling announcements sounded routine. There is, however, a deeper and more ominous meaning to the DOJ’s aggressive behavior. What the public did not know was that the Antitrust Division, in an effort to intimidate the ABA, had flexed its muscle at the settlement meeting attended by Greco, by suggesting, in a face-to-face meeting, that it was seriously considering proceeding criminally if the organization and its leaders did not toe the line. That the Department of Justice, part of the government’s executive branch, would threaten the leaders of a premier professional association in this manner, attempt to discredit the ABA, and by such a tactic seek to diminish the ABA’s historical role of representing the legal profession, speaks volumes about the DOJ’s attitude toward an independent bar. The federal contempt power is broad and amorphous, but there was considerable shock in ABA circles over this particular stretch of the law and the DOJ’s tactics. It was a particularly disturbing development in view of the fact that the ABA, and Greco in particular, had in the years after the 2001 terrorist attacks been highly critical of DOJ policies on the detention of “enemy combatants,” the use of physically coercive interrogation techniques thought by many to constitute torture, and other assertions of executive branch prerogative. In this context, the threat of criminal prosecution had to be taken very seriously indeed. If federal prosecutors had no compunction against threatening the leaders of the nation’s leading organization of lawyers, then surely there could be few areas where they would be modest about their ability to indict, and convict, the proverbial ham sandwich.

  Amorphous powers granted to, or simply assumed by, the executive branch in fighting the war on terror have provided additional areas for prosecutors to seek to intimidate members of the bar. In the summer of 2005, the American Civil Liberties Union (ACLU) found itself embroiled in a lawsuit it brought against the federal government, seeking to have the federal court in Connecticut invalidate a strict gag provision contained in the so-called “National Security Letters” (NSL) section of the USA Patriot Act, enacted after the terrorist attacks of September 11, 2001. National Security Letters are documents delivered to some institution or repository of records or accounts—a bank or a library, for example—by federal law enforcement agencies, seeking access to information about customers, clients, book borrowers and such. They differ from traditional search warrants because they issue upon the authority of the Department of Justice, rather than a federal court. For this reason, they are highly controversial.

  The ACLU and a state affiliate, the ACLU of Connecticut, represented a library in Connecticut that had received an NSL seeking information about what materials certain borrowers had taken out of the library. Despite the fact that the FBI was requiring such sensitive information (the right to read without government monitoring or interference, after all, is protected by the First Amendment) and notwithstanding that the NSL was issued by the FBI pursuant to the terms of the USA Patriot Act without any court authorization, the ACLU was not allowed to reveal the identity of its own client and the details surrounding the NSL or the lawsuit. The litigation was being conducted entirely in secret in accordance with a remarkable gag provision in the statute.

  The ACLU’s chief lawyer on the case sent an urgent message to all ACLU affiliates and state chapters, disclosing only the very limited amount of information that the DOJ agreed that the ACLU lawyers could issue, and they had to include the following startling warning:The statute under challenge includes a strict gag provision, 18 U.S.C. 2709(c). We initially filed the case under seal to avoid violating the gag provision. The ACLU is now able to disclose certain redacted28 documents in the case because, after negotiations, the government has agreed that we can disclose these facts.

  Because of the gag, all ACLU staff must be extremely cautious when speaking publicly about the case. It is imperative that you review this memo closely and use ONLY the scripted answers below in responding to the questions (or similar questions on the same issues). Failure to abide by the script below could put you, as well as National staff, at risk of criminal prosecution for violating the gag. It is particularly important that you use ONLY the scripted answers in describing our client or the NSL demand itself. The gag puts all of us in an awkward position, because the press and other organizations can comment freely based on the publicly available information about the case, while we are quite limited in what we can say.29

  Thus, one of the nation’s premier civil liberties and free speech litigating organizations was in a position in which it was not clear what it could and could not disclose without subjecting itself, its lawyers and staff members to criminal liability. Lawyers had been tossed into a legal twilight zone where they performed the
most routine functions of the job at great and unknown personal peril.

  CHAPTER SEVEN

  Doing Their Duty (or Committing Espionage?) and Other Media Twilight Zones

  The press is dubbed “the Fourth Estate” for good reason. The Constitution establishes three branches of the federal government—legislative, executive, and judicial—to divide power in the hope that each will check and balance the others. In turn, the First Amendment protects the press, which, it is hoped, will robustly monitor, and thereby check the power of, those who govern us. A free press is essential to the cultivation of an informed citizenry, and thus to Constitutional democracy itself. If you have any doubt about that, just remember that when modern tyrants seize power, they almost always shut down the press first.

  For a free press to function, reporters and the news organizations they work for must have access to the sources whose confidentiality they promise, and are therefore bound, to protect. In a sense, news-gathering is an elaborate, delicate network of relationships based on organized trust. That is why 31 states and the District of Columbia have some form of “shield law” protecting reporters from the obligation to share their sources in a court of law. (Four additional states—Iowa, Nevada, New Mexico, and Texas—have other laws that provide journalists with some, though fewer, protections.)1

  A federal shield law has been gaining support in Congress in recent years. (No state shield law can function to protect a reporter from a federal subpoena or court order.) In part, that’s because federal muzzling and harassment of the Fourth Estate has been on the increase since the mid-1980s. Naturally, vague federal criminal statutes and legal doctrines have been at the heart of this development. The seeds of this movement can be traced to the Vietnam War era, when a highly contentious relationship developed between the executive branch and the national press. The federal government’s modern campaign to rein in and intimidate the press took flower, however, at the same time that other sectors of civil society were being seriously targeted. The end of that movement is not yet in sight.