Three Felonies a Day

by Harvey Silverglate

  Alone among the Supreme Court justices, Antonin Scalia has figured out precisely how dangerous a tool for intimidating public officials the Congress, abetted by a pliant judiciary, has handed to federal prosecutors. Justice Scalia’s insight and concern were voiced most clearly and urgently in a 2009 case involving the “mail fraud” prosecution of lower-echelon Chicago city employees who, in Scalia’s words, “received no direct personal benefit from the patronage they doled out on behalf of their political masters.”14 The prosecution was brought under a legislative expansion of the mail fraud statute to include any “scheme or artifice to deprive another of the intangible right of honest services.”15 (Ironically and almost comically, this phrase had been added by Congress to the mail fraud statute in response to an earlier Supreme Court decision refusing to expand the scope of the statute, as prosecutors had sought to do, without a legislated amendment.16) Scalia dissented from the court’s refusal to review the Court of Appeals’ affirmance of the city workers’ conviction.If the “honest services” theory—broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers—is taken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer.

  While “it is one thing to enact and enforce clear rules against certain types of corrupt behavior,” noted Scalia, it is “quite another to mandate a freestanding, open-ended duty to provide ‘honest services’—with the details to be worked out case-by-case.” Scalia decried the improper role that federal prosecutors assumed “to define the fiduciary duties that a town alderman or school board trustee owes to his constituents.” He further complained about the potential for “abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

  Scalia discerned the heart of the matter when he warned: “It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.” And he ended his short, six-page dissent decrying the Court for refusing to review the “expansion of criminal liability that this case exemplifies,” concluding: “Indeed, it seems to me quite irresponsible to let the current chaos prevail.” But, of course, the chaos and the unfairness are destined to prevail until at least five justices, not just one, see and act on the problem. Still, it is refreshing to have a Supreme Court justice worry not only that the application of the statute might have been unconstitutionally vague, but that the prosecution was patently unfair.

  If we desire to effectuate such changes in practice and attitude, how would we begin? Recently, I found the key to answering this question while reading a Supreme Court brief filed in an important free speech case. The case was Scheidler v. National Organization for Women (NOW), decided by the high court in February 2006.17 The question before the Court was whether anti-abortion protesters could be punished as “racketeers” under the incredibly loosely worded Racketeer Influenced and Corrupt Organization (RICO) Act. RICO was originally enacted to prosecute “organized crime” and to deprive its members of their illgotten gains. It was eventually turned against a wide spectrum of citizens: business executives, political activists, and others.

  In Scheidler, NOW tried to adapt the civil provisions of RICO as well as the federal extortion laws to obtain a ruinous money judgment against national anti-abortion groups. NOW wanted to punish and deter protests aimed at preventing the operation of abortion clinics. Also at stake was whether the federal court could issue a nationwide injunction barring certain types of anti-abortion protests. Had the pro-choice groups succeeded, there would have been an extraordinarily dangerous precedent that would have lumped together perfectly legitimate exercises in the constitutionally protected rights of free speech and assembly, along with criminal activities involving violence.

  The case divided not only pro-choice and anti-choice groups, but also political progressives who were in favor of the right to choose an abortion, and civil libertarians who were pro-choice but were unwilling to destroy the First Amendment in the process. It was an extraordinary case that sorely tested political alliances as well as the idea of principled, viewpoint-neutral adherence to civil liberties.

  Suddenly, I came across a friend-of-the-court brief filed by, of all organizations, the AFL-CIO. For what possible reason, I asked myself, would the nation’s premier labor union want to file a brief in an abortion case? While the union tended to be sympathetic to the right to choose, it was officially agnostic on the question since abortion was not one of labor’s pressing issues. I decided to make some inquiries of the union’s legal counsel, and my question was answered. AFL-CIO lawyers were concerned that a victory for the pro-choice plaintiffs would create a precedent enabling businesses to file lawsuits and obtain injunctions, based on the federal racketeering and extortion statutes, that would interfere with labor strikes, protests, and pickets. If Operation Rescue and the Pro-Life Action League could be penalized under such vague laws for engaging in vehement demonstrations against abortion clinics, then, reasoned the AFL-CIO lawyers insightfully, any labor union could similarly be put out of business for aggressive picketing activities. And if the civil RICO provisions, combined with extortion law, were to apply to such conduct, there was no principled reason why, the next time, the criminal provisions could not be invoked in a ruinous indictment against participating labor organizations and individuals.

  The labor movement thus came to the aid of organizations for which it otherwise had no particular sympathy and with which it did not politically or ideologically identify. It was, I thought, a brilliant and principled move, the kind of broad strategic thinking few advocacy organizations are known for. The union’s move demonstrated how, when it comes to rights, all sectors of civil society have precisely the same interest in preserving the protections conferred by law, properly understood. As the free speech civil libertarian Nat Hentoff recognized in the title of one of his First Amendment books, “free speech for me but not for thee” is not a winning maxim for a free society.

  What this teaches us is that, when it comes to protecting the constitutional right to be free from prosecution under vague statutes that the average citizen cannot understand, all sectors of civil society have a stake in vindicating that interest. Filing friend-of-the-court briefs, lobbying for legislative or regulatory change, writing newspaper op-ed columns or letters to the editor, and other such advocacy should not be limited to supporting only one’s self and one’s own kind. Rather, such activities should be directed toward supporting the legal principles that protect us all. Americans need a new sense of the nature of true community, a common interest in protecting the rights even of those toward whom we might have no keen identification nor special affection.

  The battle to restore proper balance between the power of federal prosecutors and civil society cannot be fought along lines separating liberals from conservatives, law-and-order advocates from libertarians, populists from industry leaders, reporters from moguls, or any of the other categories into which our increasingly fractious society sorts us. In this arena, the divide between self-interest and the interest of others disappears. When the feds appear on the scene, claiming to represent the public interest by going after some citizen who had no reasonable way of knowing that his or her conduct could be deemed a felony, do not ask for whom the bell tolls. It tolls for all.

  ACKNOWLEDGMENTS

  This project has been a near obsession since the week in October 1990 when I sat down and spewed out an initial 30-page outline that encapsulated my thinking about the changes in federal prosecutions th
at were accounting for an increasing number of people being sent to prison for doing things—often rather ordinary and intuitively acceptable things—that I did not believe violated any federal criminal statute. I’ve spent many years since then talking with friends, clients, associates, and others about this disturbing phenomenon. Many of them have been exceedingly generous with their time, intelligence, insights, experiences, good judgment, and patience. It has proven impossible for me to remember the names of all of those who have helped me along the way, but when it became obvious that I was going to undertake this book, I started doing my best to keep track.

  Samuel Abady, whose experience in criminal law and generosity with his time and skill proved invaluable.

  Jeanne Baker, friend and former law partner, with whom I went through some of the experiences chronicled in this book.

  Charles “Buzzy” Baron, the quintessential teacher, whose insights were generously shared.

  John “Jay” Barter, skillful lawyer and colleague, who shared with me his analyses.

  Peter Berkowitz, fighter in the academic and cultural trenches, whose wide-ranging intellect is as bothered by prosecutorial excess as by academic idiocy.

  David Boaz, freedom fighter extraordinaire, who, from his perch at the Cato Institute, was one of the earliest in the political and publishing arenas who, at crucial moments, encouraged me to proceed with this project.

  Walter G. Bradley, who urged me to do what he has been doing—synthesizing a lifetime of experiences and insights to be picked up and acted upon by others.

  Bob Chatelle, who gave me his views that were always informed by his passion for justice.

  Laurie P. Cohen, former investigative journalist of great skill, who encouraged and advised me from the earliest stages.

  Philip G. Cormier, colleague and lawyer, who always had the right detail handy.

  Alan Dershowitz, fellow Brooklyn expatriate, extraordinary teacher, then colleague, and finally devoted friend, with whom I’ve lived so many professional and personal experiences, and who has acted as a sounding board for me over these many decades.

  Elsa Dorfman, my beloved and adored wife, portrait photographer, who has helped me see more than merely what I look like, and who has encouraged me to complete this long-gestating project despite the sacrifices in so many aspects of our lives together, particularly in the past four years.

  Nancy Neveloff Dubler, dear friend since we met in law school, on whose wisdom and judgment I’ve come to rely in so many areas.

  David Duncan, lawyer, on whose judgment and generosity I can always rely.

  Susan Estrich, law teacher, activist, writer, polemicist, lawyer, whose friendship and encouragement and good judgment have been so important on this project.

  Louis Fischer, former government lawyer, now in private practice, for his wise insights.

  Cathy Fleming, “white collar” defense lawyer, who does it right and was generous with her insights.

  Maurie Fox-Warren, whose accounting skill and judgment not only keeps me on the safe side of the tax man, but whose assistance on the accounting issues was generously provided.

  Nancy Gertner, dear friend and colleague since we met after her Seventh Circuit clerkship, with whom I shared some of the most formative experiences recounted in this book, for her always-appreciated judgment and encouragement.

  Sally Goodson, for her insight into her physician brother’s outrageous case.

  Malick W. Ghachem, legal scholar and practitioner, and civil libertarian, who has been so supportive of this project.

  Andrew Good, long-time law partner, lawyer of consummate skill and tenacity, who litigated several of the cases discussed in this book.

  Michael Greco, tireless fighter, from within the legal establishment, for justice and decency.

  Kenneth Hausman, for sharing with me details of the Frank Quattrone case that he so skillfully litigated.

  Jon Hiatt, attorney with the AFL-CIO, who was generous in providing documents and insight.

  Suzanne D. Hill, extraordinary office manager of the Silverglate & Good law firm (now Good & Cormier), who helped keep me organized and who made many salutary suggestions essential to the success of this project.

  Edward S. Hochman, lawyer and extraordinary intellectual gadfly, who encouraged me in this project and always let me know when he disagreed.

  N. Richard “Dick” Janis, one of those relatively rare former federal prosecutors with the insight and skill to put his talents to work in the cause of justice.

  Peter Kadzis, my long-time editor at The Boston Phoenix, on whose wisdom and good judgment I’ve always been able to count.

  Ralph Kaplan, who was very helpful in my discussion of certain business and investment practices.

  Roger Kimball, head of Encounter Books, whose infectious enthusiasm for and understanding of this project, and whose intuitive grasp of the importance of liberty from government overreaching caused me to choose him to publish this book the minute I sat down in his office, face-to-face, for the first time.

  Katie Leishman, investigative reporter extraordinaire, who encouraged me to write this from the first day she heard about it.

  Anthony Lewis, whose example for writing about law in readable English has been an inspiration to generations and has made law accessible to the general public, for reading an early version of my proposal and encouraging me to proceed.

  Dustin A. Lewis, my research assistant for two crucial years when this project got really serious, who became a trusted friend, and who understood intuitively, from the first day, why this book had to be written. His assistance and encouragement came at a crucial moment in this project, and I will never forget that loyalty and skill. His devotion to pursuing a career in human rights will much benefit society.

  Greg Lukianoff, lawyer and now president of The Foundation for Individual Rights in Education, whose legal brilliance was matched by his encouragement.

  Timothy Lynch, Director of the Project on Criminal Justice at the Cato Institute, who saw the value of this project the day he learned about it, and whose encouragement and judgment have been indispensable.

  Jennifer Lyons, loyal agent, who has supplied to this project the kind of publishing industry knowledge I lack.

  Paul McMasters, former First Amendment Ombudsman at The Freedom Forum, for his wise advice in all matters relating to free speech and the press.

  Michael Meyers, blunt, articulate, brilliant and fearless fighter for liberty, who could be counted on to give unvarnished advice.

  Scott Michel, for his advice on complex tax matters.

  Tracey Miner, skilled white collar defense lawyer, who was unstinting with her time.

  Errol Morris, extraordinary documentarian and friend, who was generous with his time and encouragement, and his wife Julia Sheehan, wise partner in Errol’s work and sage advisor generally.

  Norman and Jane Moscowitz, extraordinarily talented team of criminal defense lawyers, whom I’ve known since the very earliest days of their entry into the legal field, and who were kind enough to review drafts and supply me with valuable information and insights.

  Ethan Nadelmann, warrior against the drug warriors, who was helpful in my chapter on pain doctors.

  Cono Namorato, essential godfather in all matters relating to the tax code, who was helpful and encouraging at a crucial point.

  Daphne Patai, friend and valued cohort in the battle for liberty, who was as generous as she was wise in all that she did to help me along.

  Chris Perez, who read and commented on portions of the manuscript.

  Petsi’s Pies Bakery & Café in Cambridge, which allowed me at crucial points to escape/hide there for hours at a time when I had to get away from the pressures of law practice and my other assorted activities and obligations, in order to read, think, write and revise a difficult section of this book.

  Steven Pinker, friend of liberty in all its manifestations, who generously read the manuscript and even did a jacket blurb.


  Ellen S. Podgor, law professor, blogger, and criminal defense practitioner of unusual skill and insight, an essential resource for the legal world, who understood this project perfectly.

  Daniel Poulson, research assistant, now young lawyer, who was so helpful during his tenure working for me.

  Dorothy Rabinowitz, extraordinarily talented and effective columnist, without whose encouragement it is not clear this project would have been completed, whose instincts are so often right on the mark, and whose generosity with her time and skill has been sine qua non for the completion of this book.

  Helen Rees, whose advice on and experience in the book business were so generously shared.

  Siobhan Reynolds, President of the essential Pain Relief Network, fighter extraordinaire for the rights of physicians and their patients to function without the heavy hand of the federal drug warriors, and her lawyer comrade-in-arms, Laura Cooper.

  Jennifer Roberts, book editor, whose advice proved ever useful.

  Howard Rubenstein, New York’s legendary public relations guru, who was one of the first people I consulted about the viability of this project and who urged me unequivocally to proceed with it.

  Richard Sandler, friend and lawyer to Michael Milken, with whom I worked on that extraordinary case, and whose generosity with his time and insights is much appreciated.

  Jennifer Schneider, M.D., who spent much time discussing with me the deleterious impact that the drug warriors have on the work of pain doctors and on the welfare of their patients.