Legal Experts Sound Alarm About Justice Department Abuses

Legal Experts Sound Alarm About Justice Department Abuses
By Andrew Kreig

The federal judge who lashed out at Justice Department prosecutors in April over their misconduct in last fall’s prosecution of Republican U.S. Sen. Ted Stevens of Alaska is just one of the experts who fear that arrogant bureaucrats are threatening our basic civil rights across the country.

“In nearly 25 years on the bench,” U.S. District Judge Emmet G. Sullivan told his District of Columbia courtroom in April, “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” Under such pressure, the Justice Department launched a criminal investigation of his prosecutors and vacated its conviction of Stevens ─ but too late, of course, to save the Senate seat he narrow lost last fall after serving since 1969.

Cases like this are creating bipartisan alarm nationally among legal experts, including several chief federal judges who wrote Attorney Gen. Eric Holder last spring seeking reform. I’ve seen the change after covering DoJ fulltime for five years as a newspaper reporter from 1976-1980 in the Justice Department’s better days, and now researching abuses in its handling of corruption cases nationally.

My most recent article focuses upon the remarkable tale of Dr. Cyril Wecht, a county medical examiner in Pennsylvania as well as a consultant, author and medical school professor. Age 78, he’s now $6 million in debt from legal fees over the past four years to rid himself in June at last from felony charges about office clerical expenses. The majority of charges involved 23 separate felony counts for sending 23 personal faxes from the county medical office. His attorneys, who included former Republican Attorney Gen. Dick Thornburgh protesting the charges as “trivial” to no avail before a House Judiciary Committee hearing in 2007, estimated the out-of-pocket cost to the county at $3.26 for all of the faxes.

A recent Obama administration legal opinion reaffirms government authority to review a federal employee’s electronic messages. Does this mean that the kind of fax machine allegations against Wecht could be mirrored by similar charges against those who use computers, cellphones and email for personal messages?

Fear of such DoJ abuses was the theme of a remarkable conference that I attended last week hosted by the Cato Institute. Introduced by Washington Times columnist Tony Blankley, the speakers make the case that both parties have arrogantly empowered federal prosecutors to use vague laws to target individuals in “creative” or other arbitrary ways.

The book In the Name of Justice illustrates these points. Cato Criminal Justice Project Director Timothy Lynch’s essay collection explores what should be a “crime” ─ and whether our laws accomplish our goals. “No!” is the essence of Lynch’s response.

Lynch argues, for example, that defendants are typically ruined financially simply from being charged. He notes that 95% of prosecutions are resolved by plea bargains. Yet his book largely focuses upon a broken system’s cost to society, not to defendants. Lynch begins by reexamining such basics as:

1) Ignorance of the law. “The sheer volume of modern law makes it impossible for an ordinary American household to stay informed.”

2) A criminal code with clear and objective terms. “There is precious little difference between a secret law and a published regulation that cannot be understood.”

3) Strict liability. “Strict liability criminal offense exploded during the 20th century as legislators created hundreds of ‘public welfare offenses’ related to health and safety.”

Dramatic evidence comes also from Boston defense attorney Harvey Silverglate, author of Three Felonies A Day: How the Feds Target the Innocent and a house Judiciary Committee witness Sept. 29. His theme: “An average busy professional in this country” unwittingly commits three felonies daily that a creative prosecutor could pursue with scant review by courts, defense attorneys and the news media.

His compelling case studies say “when the statutes are vague you’re totally helpless” on health care, high-tech, law, financial services, labor, media and national security. He portrays prosecutors railroading Michael Milken, Martha Stewart and Frank Quattrone into unfounded guilty pleas.

“There was a time when you could live your life and order your affairs so that you could drastically reduce your exposure to an indictment,” says Cato’s Lynch. “But those days are gone. As Tony [Blankley] said, I think this is an issue that should concern people from all points on the political spectrum, whether you come from the left or the right.

See for yourself by watching the Cato video here or reading these vitally important books.

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─ Andrew Kreig is a Washington, DC-based investigative reporter, attorney and radio host