So I agree with Scalia, for once

The United States Codes is filled with laws, both civil and criminal. Some of the criminal laws are just downright scary. Many times, we lawyers cannot even understand what these criminal laws mean, and yet the Justice Department is running around putting people in prison under these laws. I’m talking about George Orwell and Franz Kafka kind of stuff. Many of these laws fall into a category that is commonly referred to as “public corruption.” Within these “public corruption” statutes, there is one that is particularly mysterious and it criminalizes public officials who deprive citizens of the “intangible right” to their “honest services.” Did you get that? Perhaps you should read it again.

At one time or another, I bet every one of us thinks that our elected officials have deprived us of their “honest services.” And while each of us may think that our public officials have deprived us of their “honest services,” nobody has a clue as to what this really means. So who gets to decide? The Justice Department and its “Public Integrity Section” which is currently led by William Welch (if you read my previous post you’ll know that Welch and other members of his Public Integrity Section were recently held in contempt of court for lying playing dirty in a “public corruption” case. This gives me great discomfort. So we have laws to put people in prison based on the deprivation of “honest services” and worse yet we have federal prosecutors from the Justice Department who can’t seem to provide their own “honest services” to our courts of law.

This past Monday the Supreme Court turned down an appeal from three former Chicago City officials. Sorich v. United States, 08-410 (decided February 23, 2009). Federal prosecutors charged the three men for depriving citizens of their “honest services” because they hired politically favored individuals. As you can see, there isn’t much of a standard here. Basically, the Public Integrity Section of the Justice Department just picks who they want to go after and then they simply pull out the old “honest services” book and throw it at the helpless victim. The victim will, of course, hire lawyers, go to court, file motions, cry, whine, and scream about the law but nobody will hear him.

So the three Chicago officials were convicted and sent to prison. They appealed all the way to the United States Supreme Court who turned down their case. Justice Scalia was the only member of the Supreme Court who wanted to hear their appeal. In his dissent from the denial of certiorari, Scalia said this law is so vague and broad that it makes criminals out of a public employee who calls in sick “to go to a ball game.” Scalia is right on point when he says

what principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials . . .

This law is definitely dangerous, to say the least. And perhaps it is for congress to re-write the law, but in the meantime it is the role of the judiciary to stop this madness. Or, as Justice Scalia wrote in the final sentence of his dissent, “it seems to me quite irresponsible to let the current chaos prevail.”

So I agree with Scalia, for once.

The Justice Department Caught Playing Dirty, Again

You may have read my previous posts about how dirty the Justice Department has become in recent years. Glenn Fine has provided us with some interesting reading materials to substantiate the taint that is growing in the “Halls of Justice.” Well the DOJ just got caught again playing dirty. Remember, these people are the highest, most powerful federal prosecutors in the United States and they are supposed to be investigating crimes and protecting us from bad people. And don’t forget that while they are doing this, they themselves are supposed to be abiding by the same laws and rules which they are enforcing. Too much to ask? Probably.

Last week, William Welch, the head of the DOJ’s “Public Integrity Section” (whatever that means) was held in contempt of court by a federal judge in Washington DC. Why? Because his team of federal prosecutors decided to withhold favorable evidence from former Alaskan Senator Ted Stevens during his criminal case on “public corruption” charges. Translation: the prosecutors played dirty to win the case. And what exactly did Welch’s team keep from the defense? A report by an FBI agent who was complaining that the feds were covering up information and trying to hide a witness who would have offered favorable testimony in support of Stevens who was, by the way, convicted. So the DOJ’s Public Integrity Section lacks some integrity, apparently. I was actually surprised to find out that a federal judge held Welch and his gang in contempt of court. Don’t get me wrong, the judge was right to hold them in contempt. I mean, they held themselves out as the symbol of justice and the rule of law, and yet they trampled on these rights in order to win their case. What do you think would have happened to the rest of us lawyers (non-DOJ attorneys) if we would have lied to a federal court?

The New York Times is reporting that Welch and Co. are no longer going to handle the case. Maybe Eric Holder should call Glenn Fine and see if he has some time to hose down the “Public Integrity Section” of the DOJ.

The politics of fear

We just finished a long nightmare with the Government which began three years ago with a raid by nearly 100 FBI agents on my office and the homes of my employees. The agents raiding my law firm had Kevlar vests and extra clips of ammunition – shock and awe. Were they looking for terrorists? No. Their allegations were that we had violated Campaign Finance Laws. More armed FBI agents were assigned to investigate our contributions to the Edwards presidential campaign than troops had been tasked to find Osama bin Laden at Tora Bora. I’m not kidding! In the end, the Government spent millions of dollars to investigate less than $150,000 in contributions. Why?

The heavy-handed tactics of the Justice Department were calculated to produce one thing: FEAR. Bush justice hoped that fear would produce evidence so they threatened my employees – who were offered deals to buy their freedom through false testimony. Dozens of people were told “you are a criminal and you will lose your job, your family and go to jail unless you cooperate against Fieger.”

This brings me to a point: fear is a powerful emotion and a powerful tool.

Fear is the tool that Governments have used to get consent. We need look no farther than the past few years to passage of the Patriot Act and FISA as contemporary examples of how many Americans are willing to sacrifice liberty for the illusion of security. Fear is the companion of tyrants. The only defense to fear is the courage to act for something more important than ourselves.

“Fear is the companion of tyrants. The only defense to fear is the courage to act for something more important than ourselves.”

In my case, the Government wanted to take me out as an example to other attorneys. In a policy that originated in the White House, the DOJ began to target trial lawyers who were contributing to the 2004 Edwards Campaign (Edwards was considered by Karl Rove as the probable Democratic nominee) with the goal of suppressing contributions by prosecuting trial attorneys in highly publicized trials. I was a trial lawyer, a former candidate of the Democratic Party for Governor of Michigan and prominent advocate of Edwards as President. “W” had attributed his loss of the Michigan Primary in 2000 in part to me in a concession speech delivered at Lawrence Technological University. In other words, I was a perfect target for them – except for one thing: I wasn’t afraid of them.

I wasn’t afraid of them but I was afraid of what they could do to my friends and their families. In the end though, I was less afraid then I was outraged by their tactics. I was NOT going to let them get away with it. Not only my career and freedom were on the line, but also the livelihood of over 60 loyal employees and hundreds of their family members, not to mention the of safeguarding the electoral system and the judicial system.

It sounds like an exaggeration to consider my resistance as important for the electoral and judicial systems but this is how I thought of it. If we allow the Bush Administration to control who their opposition was (by intimidating contributors), then we were in big trouble. This was not an isolated case of payback or intimidation. I was part of a campaign being run by the DOJ.

A Medal of Honor winner once was asked if he was ever afraid. His response was that he was always afraid in combat. He said that real heroes were not people who had no fears; they were people who overcame their fears and did the right thing. I was fortunate to have the best trial attorney in the country representing me – my friend Gerry Spence. He is a man of great courage, maybe not so much for fighting the government as for being willing to have a trial attorney as a client. Together, we had the courage to fight and to prevail. I must admit that during jury deliberations I felt fear — loss of control of my destiny, and it was Gerry who got me through this tough time.

I am most proud of the fact that my partner, Ven Johnson, was also charged and faced the same penalties I did, but he never wavered once. He was charged for one reason only – to flip against me in exchange for a “deal”. He could have easily saved hundreds of sleepless nights and his career by taking their deal. He had a family to consider as well as his own career and freedom. The same was true for each and every one of the employees of my law firm. Some of them were scared to tears. Yet not one single employee agreed to falsely testify for the Government. I could not have been more proud of them. You see, these were ordinary citizens, secretaries, maintenance, couriers, etc., many with no training in the law, who overcame their fears and became heroes. In contrast, and very much to my embarrassment as an attorney, many of my fellow Michigan attorneys were cowed into silence. I guess lawyers are subject to the same fears as everyone else – fear for their livelihood, their freedom. I have always believed that attorneys were the first line of defense against tyranny. But in this case the courage of ordinary citizens shamed the silence of the legal community. In this case, ordinary citizens showed attorneys how to defend liberty.

We all have fears and it is a powerful, primal emotion. Fear helps us to survive. But when fear paralyzes us then it is debilitating. I chose to fight. I believe that what distinguishes real lawyers from those who simply have a law degree is the strength to overcome fear and act for the good of all.

How do you deal with your fear?