One of the assumptions in this country is that decisions made in courts are determined by the procedures and protections set forth in the Constitution and are guided by fair-minded judges and juries of our peers. Prosecutors are supposed to be fair in following the rules and procedures set forth by state or federal law and by Supreme Court decisions.
Yet there is abundant, factual information available that would indicate the opposite. While many claim otherwise, it is not based on race or income level. It is based on bias and catering to an agenda.
I just finished a book that I highly recommend, especially if you want your blood to boil. It is “Licensed to Lie” by Sidney Powell. Ms. Powell is a former federal prosecutor turned private practitioner. She has testified before the Supreme Court several times and has been named one of the “Best Lawyers in America” for years. In other words, she is one of the best of the best attorneys.
The book, without revealing too much, documents the abuse federal prosecutors engaged in during the Enron trials, the peripherally associated trials of the accounting firm Arthur Andersen and Merrill Lynch, and the unrelated trial of Alaska Senator Ted Stevens.
Central to the abuses found in the above cases is a Supreme Court ruling in 1963 called Brady v Maryland. The Brady decision requires the prosecutor in a case to turn all available information over to the defense. The reason for this is that the prosecution has unlimited access to crime scenes, forensic and other data, and the force of government subpoena to gain information. These powers are not available to the defense.
Ms. Powell clearly documents prosecutors bringing charges that weren’t crimes, the prosecutorial abandonment of Brady, and witness intimidation through indictment threats in all the cases cited above. In some cases, a diligent judge exposed the abuse. In other, she names judges who were apparently willing to ignore the law to fulfill expectations of public sentiment.
What is disappointing is that none of the prosecutors, even those caught red-handed, were punished. Even state bar associations declined to take action despite clear evidence. What is more disappointing is that many of these prosecutors went on to more elevated positions. Some rose to high levels in the Department of Justice. One was appointed as White House Counsel in the Obama administration.
This book is doubly important because now the same tactics are evident. Some of the attorneys in the Enron and Merrill cases are now on the Mueller investigation team. Many still remain in the DOJ. Remember General Flynn? He pled guilty to a process crime, mainly because unlimited tax dollars were used to fund the DOJ case against him while withholding exculpatory information. They essentially kept after him until he ran out of money.
Only a diligent and honest judge found that the prosecution had lied and withheld information favorable to the defense. One has to wonder how many other times this abuse has occurred where a less diligent judge presided.
One other example close to home is the Bundy case in Clark County. Once again, critical information damning to the prosecution was withheld from the defense until an honest federal employee came forward.
I believe the honest prosecutors and judges outnumber the abusers. But understand that most federal judges are former federal prosecutors. The competitive nature of the job plus ego, the incentive to advance, the possibility of a judgeship, and the utterly miniscule chance of consequence for their actions all foster the lawlessness that seems to be becoming more prevalent in the legal system.
I admire Roger Stone, the recently indicted Trump advisor, for refusing to play the prosecution’s game. Most people under federal indictment are bullied or scared into staying quiet. He refuses to do so. Not only is he vocal about the Mueller team tactics, he is counterpunching by filing suit demanding Mueller’s team prove they did not tip off CNN prior to his arrest. This may be the only way to force prosecutors to at least appear to play by their own rules.
Martin Luther King, Jr. once said, “Justice denied anywhere diminishes justice everywhere.” When we can’t trust the most powerful law enforcement agency in the country, the Department of Justice (which includes the FBI) to follow their own laws, trust is lost. I can only hope that Mr. Barr, our new Attorney General, can turn the ship in the right direction. Otherwise the system is failing.
Tom Riggins can be reached at firstname.lastname@example.org.