December 8, 2013


Then, about fifteen years into my law practice, I noticed a shift in the federal courts. More and more of my clients (physicians, bankers, academics, scientists, investors, newspaper reporters, accountants, artists, and photographers) were being investigated and prosecuted for conduct that neither they nor I instinctively viewed as criminal. As I prepared to defend against the charges, I could not rid myself of the unsettling notion that the federal criminal laws were becoming vaguer and harder to understand with the passage of time.

Silverglate, Harvey (2011-06-07). Three Felonies A Day: How the Feds Target the Innocent (Kindle Locations 539-543). Encounter Books. Kindle Edition.

This book caused a bit of a stir when it came out a couple of years ago. I was interested but distracted and did not get around to buying it until a few weeks ago.

I thought from the title that it was about abstruse regulations like the poor guy John Stossel featured who went to jail -- in the US -- for importing lobster in plastic packages (as he had done for years and as Honduran law permits). Such stories are sad and anger me, but one hopes that they are as rare as ObamaCare success stories and can be similarly discounted.

Three Felonies a Day is darker and more serious. Silverglate documents prosecutorial overreach. Endemic overreach. Federal prosecutors can, Alice in Wonderland style, pick a person and put them away. Some of the cases documented have been discussed around here: Martha Stewart gets exonerated though the author will not join me in rehabilitating Sam Waxsal. Michael Milken, I think we all (we ThreeSourcers, kimosabe) accept got a raw deal.

Silverglate also goes to bat for the Enron folks. We as a nation had to have heads on a platter after that debacle -- and a host of bad, pointless legislation. But contra the 5th and 14th, people's liberty was taken without due process.

I posted a very entertaining video of Silverglate last week. As I mentioned, almost all of the villains in the book are Republicans. Hizzoner Rudy Giuliani -- whom I have praised at length on these pages -- established himself as a tough on crime, mob-busting, prosecutor. But like most, he relied some tools that are not conducive to the idea of free people. Patriot Act and terrorism prosecutions in the Bush Administration are put in harsh light.

We just saw the shakedown of Jamie Dimon and Chase. It is now in a corporation's best interest to just shovel money at the DOJ whenever they ask. The Feds have this great tool of "you're not going to win" and they can destroy (cf. Arthur Andersen) a company any time they'd like. So the corporations capitulate because it is in their best interest. But this leaves individuals with the implication of guilt and often without the corporation's resources to mount a vigorous defense. Those who fight and win tend to end up ruined.

The emptiness of the prosecutors' dramatic allegations was later hinted at when a judge dismissed the murder charges and lowered bail after a 21-day preliminary hearing. Four more years passed before the remaining felony charges were dismissed, and it was not until May 2004 that a jury acquitted Dr. Fisher of the remaining misdemeanor charges. By then, the damage had been done. Besides spending five months in jail, the financial burden of fighting for his reputation drained the 50-year-old Harvard alum's assets. After the acquittal, he had no choice but to live with his elderly parents. Not only are doctors vulnerable to the threat of such prosecutions, but, just as important, chronic pain sufferers cannot obtain relief.

I avoid the fever swamps of conspiracy theories and over-the-top accusations of impending fascism in favor of the self-interest of misguided people and bad ideas. But it is hard to stay upbeat after reading "Three Felonies a Day." The maw of government is there and it is invincible. I don't think it likely that they'll come after a humble blogger/software developer [Wait a miute, there's a knock at the door...]

No, seriously, this continues because it is something most can avoid. But I naively hold to the idea of a nation of laws. When you do not trust the current administration, it is frightful to imagine that they have these tools at their disposal. It can be directed at political enemies, eeevil bankers and anybody else not in the public's top ten this week, physicians (the section on pain medication is heartbreaking), pharmaceutical companies, &c.

Dark reading and I dare anybody to contradict it. I traded some email with a blog friend in the middle and he reminded me of Gibson guitar's Fish & Game SWAT team raid. Land of the free, huh?

The book is great, I am sorry I waited two years -- five stars.

Review Corner Posted by John Kranz at December 8, 2013 11:02 AM

"... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security..."

Posted by: Keith Arnold at December 9, 2013 12:16 PM

I hear you, Brother. I'm quite the fan of marginal fixes and working within the system, but this is a complete abdication of rule of law replaced by rule of men. That's harder to fix.

A new Congress might tinker with the Cap-Gains tax, but how do you fix this? I suppose a sea change on the Supreme Court might rein these lads in, but as Clark Neily III points out in Terms of Engagement, they are "on the government's side" as well. Perhaps President Rand Paul appoints Ted Cruz as AG and these practices are extirpated? Fairy Dust? Unicorn DAs?

Posted by: jk at December 9, 2013 12:36 PM

In the 18th Century BC, Hammurabi had a pretty good idea: all laws should be on public display, and written simply enough that the town drunk could understand them and know what was required of him. Good times, good times. We've drifted a little bit from that notion, it seems.

I guess those were days when you didn't have to pass a law to find out what was in it. If someone runs for office and says he'll go back to that, he'll get my vote.

Posted by: Keith Arnold at December 9, 2013 1:03 PM


Perverted Law Causes Conflict

As long as it is admitted that the law may be diverted from its true purpose — that it may violate property instead of protecting it — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious. To know this, it is hardly necessary to examine what transpires in the French and English legislatures; merely to understand the issue is to know the answer.

Is there any need to offer proof that this odious perversion of the law is a perpetual source of hatred and discord; that it tends to destroy society itself? If such proof is needed, look at the United States [in 1850]. There is no country in the world where the law is kept more within its proper domain: the protection of every person's liberty and property. As a consequence of this, there appears to be no country in the world where the social order rests on a firmer foundation. But even in the United States, there are two issues — and only two — that have always endangered the public peace.

Slavery and Tariffs Are Plunder

What are these two issues? They are slavery and tariffs. These are the only two issues where, contrary to the general spirit of the republic of the United States, law has assumed the character of a plunderer.

Slavery is a violation, by law, of liberty. The protective tariff is a violation, by law, of property.

It is a most remarkable fact that this double legal crime — a sorrowful inheritance from the Old World — should be the only issue which can, and perhaps will, lead to the ruin of the Union. It is indeed impossible to imagine, at the very heart of a society, a more astounding fact than this: The law has come to be an instrument of injustice. And if this fact brings terrible consequences to the United States — where the proper purpose of the law has been perverted only in the instances of slavery and tariffs — what must be the consequences in Europe, where the perversion of the law is a principle; a system?

Posted by: johngalt at December 10, 2013 2:44 AM | What do you think? [4]