The Law Is A Whore……Redux

The recent death of Antonin Scalia led to it being exposed that his stay at this luxury Ranch was paid for by a benefactor who had a case before the Supreme Court of the United States (SCOTUS). The idea that SCOTUS judges received “gifts”, or benefits from people who had business with the court is an issue that has been remarked upon by Chief Justice Roberts.  The Chief Justice has stated that his prefers to have each Justice police their own actions sin all ,Justices are presumed to be honorable people, who will do the right thing in the eyes of the law. Perhaps, but my knowledge of human nature is such that I doubt the honor of almost anyone in public life. In my opinion among the most dishonorable people in public life may well be the Federal Attorneys from the Department of Justice. It seems to me that this is so because historically these prosecution positions have been excellent stepping stones to higher political office

In December, 2015 I wrote a piece called The Law Is A Whore in which I discussed the devolution of the American Criminal Justice System, mostly through the increased powers of prosecution granted under the the idea of the “War On Drugs” and the “War On Organized Crime”.  The extraordinarily repressive “RICO Laws”,  enacted in 1970, during the Administration of one of the most arguably corrupt American Presidents Richard Nixon, have been consistently misused way beyond their supposed utilitarian purpose. The Federal Attorneys from the Department of Justice have been the most egregious examples of prosecutorial discretion run amok, because these positions have been seen to be advantageous to building a political career. Therefore the temptations to make headlines with their prosecutions has been far too attractive for many who have let their personal ambition override their legal ethics. I discussed this in terms of the abuse of “plea bargaining”, which to my mind has made a mockery of the idea of true justice in the American Criminal Justice System. I discussed this in depth in Cheap Justice, Bad Law = Broken System

. This has been a long term obsession of mine, even while I was writing about it at Jonathan Turley’s legal blog Res Ipsa Loquitor. In January 2013 I wrote:

America’s Broken Criminal Justice System

Last night I was watching a TV series called Suits, which I enjoy. It was  about a Federal Prosecutor who was willing to bend the law to its breaking point, in her zeal to get a headline worthy conviction. It put me in mind of an article I’d read last year an at OpEd News, by Barry Sussman a Lawyer and activist against the misuse of the Federal Criminal System. The article was about the anomalies in the current prosecution of the U.S. Senator from New Jersey, Bob Menendez. I was struck how similar the details were to my own ideas of what is wrong with Federal Prosecutions. What follows are excerpts from the article N.J. Senator Bob Menendez: An Attractive Target for Federal Prosecutors, which I think makes a compelling case for the destructiveness of many Federal Prosecutors.

 

“On April 1, 2015, U.S. Senator Robert Menendez (D) of New Jersey was indicted by a federal grand jury sitting in Newark, NJ on 14 counts, including conspiracy to commit bribery, honest-services fraud and the making of false statements.

The essence of the charges against Menendez alleges that he used his influence as a senator for the benefit of a long-time friend and campaign contributor. This allegation appears to beg the question of exactly why people donate to and befriend politicians in the first place. One could argue that the failure to assist a friend and contributor might better constitute the basis for criminal charges. Similarly, one must wonder who would govern if every elected official were imprisoned for exerting influence on behalf of friends and contributors. Perhaps the feds really have the goods on Menendez, but the initial description of his alleged misdeeds sounds a lot like run-of- the-mill politics.

But these kinds of fluid, vague and amorphous allegations are perfectly suited for U.S. federal courts, where criminality is basically whatever the prosecutor deems to be illegal. Prosecutions like Mendez’s bolster the view that federal prosecutors do not investigate crimes, they investigate people. Begin with an intended target, put them under the proverbial microscope and examine until something fits within the parameters of the growing and expansive federal Criminal Code. With many federal “offenses” being little more than catchalls, it is usually only a matter of time before a federal prosecutor can twist some pattern of behavior into the basis for a federal criminal indictment.”

“Menendez has denied any wrongdoing and like so many other federal defendants, likely has committed no intentional crime, at least in his mind”and now finds himself entombed within a federal criminal matter in which the full force of the United States government will be mercilessly pitted against the accused.

These decided mismatches have given way to a criminal conviction rate of 99.5% in U.S. federal courts. It is more akin to what one would expect in a banana republic or Third World dictatorship. The feds are loath to admit the near statistical certainty of a conviction in a U.S. federal court and as a result, trials there are becoming increasingly scarce with approximately 97% opting to waive trial and enter a plea of guilty. The 99.5% figure is, on its face, patently illegitimate and highly indicative of exactly awaits Menendez.”

How familiar this prosecution seems, but even more importantly is that Federal Prosecutors have the ability to carefully choose their targets for maximum publicity and then bring the entire power of the Federal Government to bear upon scrutinizing every detail of that target’s life. How many of us could stand such scrutiny of our entire lives and stand up under the surmises of prosecutors bent on gaining a conviction? Yet interestingly, how few of these prosecutions involve those of the uber-wealthy .01 percent who are the chief sources of campaign funds for future office seekers? Contrary to the rosy myths of our American Constitutional System, the most powerful people are not our elected representatives, but those whose money provides the ultimate power.

“Menendez further explained that “Prosecutors at the Justice Department don’t know the difference between friendship and corruption. Rather, they have chosen to twist my duties as a senator, and my friendship, into something that is improper. They are dead wrong.”

He continued, “I am angry because prosecutors at the Justice Department don’t know the difference between friendship and corruption.”

Supporters of Menendez are quick to point out that all of the campaign contributions referenced in the indictment were within permissible limits and there is a stunning lack of evidence of any quid pro quo.

The senator essentially claims that prosecutors are misconstruing lawful, innocent acts. But this is what federal prosecutors do. Creative prosecutors see criminality where those less skilled only see compliance. Finding new and imaginative ways to apply criminal statutes is how federal prosecutors forge their careers and advance up the judicial-corporate ladder.

The ongoing “gotcha” game of federal prosecutions calls to mind a report from years back involving prosecutors in the U.S. attorney’s office for the Southern District in Manhattan. Allegedly, prosecutors there played a game where they would name a historical figure and discuss the federal charges for which they could theoretically be convicted. The names of the “guilty” ranged from John Lennon to Mother Teresa.”

That last paragraph is the heart of the matter. Federal Prosecutors have wide discretion in picking and choosing among their targets. Then they have all the law enforcement investigators from the FBI and other government entities available to go after their target. Using cell phone data, wiretapping, tax records and all the other data available, anyone no matter how law-abiding, can have the facts of their life twisted into that of a criminal. At which point, by charging that person with an amalgam of crimes that could put them in Federal prisons for decades, any sane person might well agree to a plea bargain.

“These decided mismatches have given way to a criminal conviction rate of 99.5% in U.S. federal courts. It is more akin to what one would expect in a banana republic or Third World dictatorship. The feds are loath to admit the near statistical certainty of a conviction in a U.S. federal court and as a result, trials there are becoming increasingly scarce with approximately 97% opting to waive trial and enter a plea of guilty. The 99.5% figure is, on its face, patently illegitimate and highly indicative of exactly awaits Menendez.”

I don’t know if Bob Menendez is innocent or guilty, but I do know that the system he has been indicted under has become corrupt. In fact Menendez is far too right wing in political outlook for my tastes, but shouldn’t our court system really be about fairness rather than power and political gain?

“The U.S. attorney’s office in Newark, NJ has long been a hotbed of prosecutorial misconduct and has produced some of the most extreme examples of those who chose to establish a prosecutorcracy, basically a system under which prosecutions lead to political advancement. The Newark office is where such notable figures as Michael Chertoff, Samuel Alito and Chris Christie successfully built reputations upon the bodies of their victims. And nothing served their purposes better than prosecuting high-profile defendants.”

There are literally too many Federal Prosecutors who have built their careers upon being “tough” on crime to name here. Prominent among them is Rudy Giuliani, who rose to “fame” with several publicity filled prosecutions and convictions, most of which were thrown out on appeal due to misconduct. Yet this was enough to make Giuliani “America’s Mayor”. The author concludes his piece on this somewhat sour note, after having noted that prior to this Menendez did little as a Senator to curb this unfair system:

“And while Menendez is certainly deserving of the same sympathy entitled to any other victim of the grand pernicious scheme that passes for justice on a federal level, one cannot help but wonder what affirmative steps he took as the senior senator from New Jersey to curb the very abuses at the DOJ under which he now founds himself ensnared. It would appear that prior to becoming one of its victims, Menendez had little problem with the way in which “justice” is dispensed in U.S. federal courts. It seems almost certain that his former complacency will soon be replaced with zeal to reign in out of control federal prosecutors and their incredible lack of accountability. A similar metamorphosis was seem in Bernard Kerik, the former New York City police commissioner, whose federal conviction saw him go from a staunch believer in law and order to outspoken advocate for prison and justice reform. There is probably more than a little truth in the saying that a liberal is a conservative who has been arrested. The problem with Menendez’s anticipated conversion is that it will likely come after he is able to meaningfully impact the federal criminal justice system.”

We see that the issue of what constitutes bribery of government officials is a subtext of the 2016 Presidential Race. The fees Hillary Clinton, for instance, has received from Goldman Sachs, call into question what she has given in return. However, one can say the same of many of the other candidates and indeed of almost every elected official in this country. The obvious solution is the overturning of “Citizens United” and a complete reform of our campaign systems at all levels of government. Until that time though, with the Justice Department’s Federal Prosecutors wide latitude for prosecution activities and targeting of specific individuals, we are faced with an imbalance in our legal system. The admitted 97% rate of guilty pleas is absurd on its face, unless undue coercion is allowed, which it currently is. You will note as well that as tough as these Federal Prosecutors make themselves out to be, they all lacked the courage to prosecute anyone whose company pleaded guilty to fraud after the 2008 financial collapse. Am I wrong to suspect that these paragons of prosecutorial virtue were too concerned about their own political futures and the need for campaign cash, to take on these vile miscreants whose crimes brought our nation to its knees

The truth is that our political paladins of power are merely the vassals of the liege lords of the oligarchy than runs America. What many find out all too late in the game, is that no matter how powerful they imagine themselves to be, they are only pawns in the game.

                                                      Senator Robert Menendez, (D) N.J.