Three Felonies a Day

by Harvey Silverglate

  The court’s analysis was remarkable for the degree to which it dismissed all of the doubts previously expressed about the meaning and reach of the Wiretap Act. In response to Councilman’s argument that the “plain text” of the statute did not cover his actions, the majority said: “As often happens under close scrutiny, the plain text is not so plain.” But this lack of clarity, rather than working for Councilman, somehow worked against him. The majority claimed to resolve “this continuing ambiguity” in the statute’s language by looking to the legislative history of the enactment, a notoriously difficult task under the best of circumstances. Congress intended to give “broad” protection to electronic communications, they concluded, and so the panel’s prior Councilman decision was flawed.

  The majority of First Circuit judges must have been a bit self-conscious about reinstating an indictment that was so controversial and that had perplexed so many fine judicial minds on both coasts. The court thus could not entirely deny that there was some degree of ambiguity here. But the rule of lenity, the majority intoned, applies only in cases of “grievous ambiguity in a penal statute.” In this case, the majority remarked in one of its more bizarre formulations, there was only “garden-variety, textual ambiguity.” “The Wiretap Act is not unconstitutionally vague in its application here,” concluded the majority. “From its text, a person of average intelligence would, at the very least, be on notice” that Councilman’s activity was covered.

  It was this last part of the majority’s opinion reinstating the indictment that drew the seeming ire of Circuit Judge Juan Torruella, who issued a stinging, and illuminating, dissent, with which only one fellow judge agreed. Judge Torruella called the majority’s interpretation of the statute “an unfortunate act of judicial legislation,” and pointed out that the defect in the law can only be addressed by Congress’s rewriting the statute. “It is not by coincidence that every court that has passed upon the issue before us has reached a conclusion opposite to that of the en banc majority,” he wrote. Even if the majority’s interpretation of the statute were correct, the rule of lenity surely must be applied in this case: “Councilman is being held to a level of knowledge which would not be expected of any of the judges who have dealt with this problem,” to say nothing of “men and women of common intelligence.” “If the issue presented be ‘garden-variety,’” as the majority decision had claimed, “this is a garden in need of a weed killer.”

  Nine years after his alleged criminal acts, Bradford Councilman was finally put to trial before a jury of his peers to determine the factual question of the case—whether he was the person who copied the stored emails and thereby committed what the Court of Appeals said would be a federal felony. At Councilman’s trial, a government witness conceded that the email copies were periodically purged because the accumulation of duplicate copies intermittently overloaded the system. This fact made it more likely that the copies were made routinely by someone at the company to supply a temporary back-up in the event of accidental deletion of the original message before it arrived at its destination. An FBI agent testified at the trial that when a cooperating witness tried to explain this to the prosecutor during a trial preparation session, the prosecutor balked and asked the witness and his lawyer to confer, whereupon the witness retracted the innocuous explanation for the back-up procedure. The jury returned a verdict of “not guilty” on February 6, 2007. Jurors have their own way, sometimes, of clearing weeds.

  So the Court of Appeals for the First Circuit completed the journey from the principled jurisprudence of the Anzalone case to upholding, at all costs, the 1995 convictions of Walter Lachman and Maurice Subilia (discussed in Chapter Eight), and the indictment against Bradford Councilman. It marked a new age. The legal devices that the Anzalone court said were symbolic of the Soviet Union’s legal system (where prosecutors would go after citizens armed with the nearest arguably analogous criminal statute if none covering the defendant’s precise activity is available) have gained respectability and, indeed, the status of legal precedent. Of course, increased judicial cooperation with Justice Department prosecutions is not limited to Boston. Nor is it restricted to white collar prosecutions in the areas of export control and the Internet. Rather, the garden of federal criminal law is overrun with weeds throughout the landscape.

  Wrongful prosecution 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 has 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.

  But the damage extends beyond individual lives. We as a society face collective fallout from the proliferation of these dark practices. The Founders’ idea of separation of powers, in which abuse of power would be checked by inter-branch monitoring and even rivalry, was to be supplemented by a vibrant civil society that would also check excessive government power. Over the past 30 years, federal prosecutors’ efforts to divide us have served to both increase executive power (aided and abetted by a largely quiescent judiciary) and deflate the capacity of civil society to check executive overreach. You might say it’s a twofer.

  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.

  Consider the recent imbroglio over the federal government’s attempt to intimidate laywers representing “war on terror” prisoners held by military authorities at Guantánamo Bay, Cuba. During a January 11, 2007, radio interview, Charles “Cully” Stimson, then the deputy assistant secretary of defense for detainee affairs, declared that he was shocked that lawyers at some of the nation’s preeminent law firms were donating legal services to the detainees. “I think, quite honestly,” he said, “when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms.”9 Stimson, speaking with what many sophisticated observers felt was the support of Bush administration higher-ups, appeared to be suggesting an industry boycott of firms donating legal services to the suspected terrorist detainees.10

  Stimson may have expected his barely veiled threat to intimidate lawyers into steering clear of Guantánamo. Instead, the legal community and corporate sector loudly and clearly supported the independent bar’s long tradition of representing pro bono publico (for the public good) those accused of even the most heinous crimes. The outcry caused military and administration officials to distance themselves from Stimson’s remarks. Stimson was thrown overboard and soon resigned. The Bar Association of San Francisco, it was reported, even launched an investigation (probably an ill-considered overreaction) into whether Stimson violated legal ethics by suggesting a boycott of law firms for performing such a service.11 The government’s unhappiness with the indepen
dence of the private bar was evident, but the administration chose not to make its stand on an issue as deeply ingrained in our legal culture as the right of even the most unpopular defendant to a skillful defense. Civil society won this skirmish.

  But the question is whether the independence of the bar will flourish as vibrantly in the future as it has in the past, especially when threatened with prosecution. One need not agree with the activities engaged in nor positions taken by the private bar or any of the professions or professionals discussed in this book to understand why their health and independence are essential to both American freedom and the system of checks and balances that underlies constitutional liberty. It is this balance that is at risk when any citizen or group within civil society can be dubbed criminal by an inflated executive branch for engaging in ordinary activities common to their respective professional missions. When one is attacked, all should feel attacked, as the liberty of all is put at risk.

  What is to be done?

  My teacher, colleague, and friend Alan Dershowitz has suggested in his Foreword that the problem is essentially structural and might be ameliorated by separating the prosecutorial from the political functions of the office of the attorney general. While there is some validity to Dershowitz’s concern about the relationship between presidents and their attorneys general, I am skeptical that such a reform would accomplish much. Although a culture dangerous to American liberty has developed within the Justice Department, my view is that the problem lies principally with the history of federal criminal law itself, which has become increasingly unmoored from traditional common law notions of criminal intent and the clarity of criminal statutes. Federal prosecutorial culture has indeed been driven by the twin forces of politics and ambition, but those human vices (if vices they be) are present as well in state prosecutors. As the parable of Eliot Spitzer and Hank Greenberg demonstrates, even the most ambitious state prosecutors are loath to risk using state criminal law in the same fashion as the DOJ uses federal law. For one thing, state prosecutors have to deal with state judges who function in the common law tradition, where guilt combines legal and moral components. For another, state statutes, more often than not, are comprehensible.

  If I am right, we must foster the realization that the Justice Department’s tactics too often are employed not to protect, but to attack law-abiding society. While it is true, as Dershowitz posits, that sometimes creative criminal “miscreants” cleverly get around the letter of the law (especially laws that have become obsolete) and therefore tempt equally creative prosecutors to stretch the law, it is also true that too many ordinary, well-meaning, and innocent people get caught in the maw of the Department of Justice’s prosecutorial machinery. For them, life becomes nightmarish, like an episode in a Franz Kafka novel.

  Too often, the DOJ has successfully convinced the public, and an often all-too-gullible press, that its prosecutors are acting to clean up some nest of corruption or dire threat to the nation. In the kinds of crusades to which we have become accustomed and find far too comforting, the DOJ has often managed to enlist the press as a cheering section rather than as an appropriately skeptical Fourth Estate. Reporters are too willing to sit down with their prosecutorial sources to learn about the evildoers in the dock, without doing the hard work of understanding why and how the government claims their conduct broke the law, or even why and how they are supposedly bad people. Reporters must begin to enlist the aid of defense lawyers, as well as the few academics who understand these prosecutions, to offer sophisticated and critical reporting of federal prosecutions. Reporters who cover legal stories might also spend some time in law school and in apprentice legal practice.

  All of this is not to say, of course, that many of those prosecuted are not real criminals who engaged in real crimes defined by clear and reasonable laws. But the growing exceptions are far too numerous to miss, and the burgeoning phenomenon of prosecuting the innocent on the basis of undecipherable statutes and regulations is too dangerous to ignore. Reporters should spend less time rushing to cover such photoops as the traditional “perp walk,” the public walk-of-shame, perfected by Rudolph Giuliani, former United States Attorney for the Southern District of New York, and more time learning the realities of our increasingly troubled and troubling federal criminal justice system.

  Of course, criminal defense lawyers, especially in the area of white collar crime, are not always helpful to reporters seeking to learn whether a particular prosecution is real or faux. A growing percentage of members of the criminal defense bar are alumni of the Department of Justice, and far too many, though hardly all, have imbibed the culture of the DOJ and carry it into their white collar defense careers. Too many feel that if their clients have been indicted, they must have violated the law, and that if they are being prosecuted by the DOJ, they are likely to be convicted. Such lawyers all too often do not believe in the innocence of even their innocent clients, and, in any event, think that an effective defense is rarely available in a federal prosecution. Hence, plea bargaining, rather than vigorous defense, becomes the order of the day. With plea bargaining comes the pernicious practice (to borrow again Professor Dershowitz’s seemingly cynical but all-too-accurate phrase) of teaching the witness not only to sing, but also to compose.

  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 that 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.

  Criminal defense attorneys must begin to view themselves, especially in cases such as those discussed in this book, more as civil liberties lawyers. Their job should be to protect liberty itself, as well as their clients. At the deepest level, those two goals can and should be seen as complementary. Many lawyers are reluctant to talk publicly about the unfairness of the prosecutions against their clients, concerned about ubiquitous court rules restricting pre-trial publicity that supposedly might influence a future jury. Such rules, when applied too broadly, are also likely unconstitutional, as prior restraints on speech that defeat rather than promote justice. Besides, the typical justification for such pre-trial publicity rules is that they are meant to protect potential jurors from being prejudiced. Yet such a justification is entirely irrelevant after a trial when all that is left is an appeal before appellate judges.

  The application of these rules, as well as judicial “gag orders” imposed under their authority, should be challenged by defense lawyers in appropriate cases. After all, under the current circumstances, many an innocent man, woman, organization, and company will end up forgoing a jury trial. A vicious circle has developed: Lawyers are constrained against fighting for their innocent clients in the court of public opinion, making it more likely that such clients will end up pleading guilty to avoid the risk of staggeringly long sentences meted out to those convicted after often unfair jury trials.

  Judges play an important role in perpetuating a system that is becoming increasingly corrupt. They pretend to believe witnesses whose testimony has been forged under enormous undue pressure, and they even praise and reward those witnesses with reduced sentences for their “cooperation,” even when that cooperation has been directed to prosecutors rather than to justice. If judges continue to allow bought or coerced testimony, then pressure must be brought to bear on Congress to enact legislation outlawing the practice. Judges who go along with this system are undermini
ng justice, not administering it, and they should be treated as such rather than honored for their “public service.” The proverbial emperor, though donning a black robe, in reality has no clothes and should not be treated otherwise.

  As every judge on the federal bench knows, there is a clause in the body of the Constitution, less well known than the various amendments in the Bill of Rights, that prohibits Congress from enacting “any ex post facto Law.”12 Black’s Law Dictionary, the standard work in the field, defines such a law as one “that impermissibly applies retroactively, [especially] in a way that negatively affects a person’s rights, as by criminalizing an action that was legal when it was committed.”13 That clause is too rarely used in the modern era. It should be reinvigorated. If a prosecution is brought on the basis of a vague statute, and if there was no reasonable warning to the defendant that he was committing a crime, the indictment should be dismissed. Judges should not twist themselves, and the statutes they are charged with enforcing, utterly out of shape in order to do the DOJ’s bidding.

  Yet another provision of the Constitution should be reinvigorated in the battle against vague statutes. At one point in American history, as discussed in Chapter One, the federal courts more carefully enforced the “due process” clauses of the Fifth Amendment (applying to the federal government) and Fourteenth Amendment (applying to the states) in order to invalidate criminal convictions based on statutes that are so vague that people of ordinary intelligence cannot understand what conduct is proscribed. The federal courts need to take this constitutional right more seriously. Where not only ordinary citizens but even federal judges disagree about the meaning of a statute, as happened in the Bradford Councilman case, it does not take a legal genius to recognize that the law is hopelessly ambiguous.