It's hard to think of any good that can possibly come out of the ongoing maniacal efforts to use the criminal law to overturn the results of our last election. But here's the best I can offer: At least we are getting a closer look than we usually get at our over-criminalized and steeply slanted legal system. And maybe a few people are starting to pay attention. We've let this monster get way out of control. Can it be reined in? Maybe a little.
If you are unfamiliar with this subject, you can get a lot of background by reading through my Archives under the tag "Phony Prosecutions." There are about 60 posts there, covering everything from the extraordinary number of crimes (over 4000 just in the federal books!), to vague statutes, to shakedowns of legitimate businesses, to takedowns of political opponents, to prosecutorial coercion of witnesses, to misuse of civil asset forfeitures, and much more.
The most recent post, just a couple of days ago noted that Michael Cohen had pled guilty to a violation of the campaign finance law because supposedly the payoff to Stormy Daniels constituted a campaign rather than a personal expense, and therefore Cohen's advancement of same constituted a campaign contribution in excess of the allowed limit of $2700. However, under the same law, had the same payment instead been made with campaign funds contributed in accordance with the limits in a desperate attempt to avoid criminality, the payment could then just as easily have been prosecuted as misuse of campaign funds for a personal expense -- that's a crime too! They've got you coming and going! Everything is a crime!
In one of the comments on that post, frequent commenter Ray sent along a link to an article by recent ex-Ninth Circuit Judge Alex Kozinski and Misha Tseytlin titled "You're (Probably) a Federal Criminal." Kozinski and Tseytlin mainly address the question of over-criminalization, or what they describe as the "ubiquity" of criminal laws. The article is loaded with examples of things that are crimes even though you would never guess they were, as well as vague statutes under which more or less anything might be a crime if some prosecutor may choose to make it one. One of the best examples is "deprivation of the intangible right to honest services." (That's 18 U.S.C. Section 1346.) K&T quote Judge Dennis Jacobs of the Second Circuit as saying that this statute may well make it a crime for "an employee [to] violate an employee code of conduct." Why not? K&T conclude:
The overwhelming majority of police and prosecutors try to enforce the law dutifully. After catching the few obvious hard-core crooks, they vacillate between randomly enforcing laws and selectively enforcing them based on their own judgment and the public's demands. This approach undermines the rule of law and makes luck, conspicuousness, and the subjective opinions of government officials the most important factors in determining whether someone ends up in jail. And that's just what happens in the best case. When malicious prosecutors or would-be tyrants get hold of a ubiquitous criminal law, fortified by the public's belief in the moral force of that law, they can go after pretty much anyone they choose.
And then there is the problem that the prosecutors do not need to follow the same rules as their targets. Exhibit A for this is the pressure that prosecutors put on witnesses, including threats of prosecutions, to get them to "flip." But if a government target even tries to talk to a prospective witness, he gets threatened with a charge of "obstruction of justice." We saw this most recently in the case of Paul Manafort. He is under threat of life emprisonment by prosecutors trying to get him to turn on President Trump; but when he sent emails to a couple of prospective witnesses looking to talk to them, and containing nothing in the way of threats or inducements, the prosecutors had him thrown in solitary confinement. Alan Dershowitz comments on this situation in a column today for the Gatestone Institute:
[I]t is . . . illegal for a lawyer to [offer valuable consideration to a witness for providing testimony] -- if the lawyer is a defense attorney. If any defense attorney offers a witness an inducement to testify favorably to his client -- even if his testimony is 100% truthful -- that lawyer will be disbarred, prosecuted and imprisoned. But it is perfectly legal, indeed widely regarded as commendable, for prosecutors to offer major inducements in order to get witnesses to testify against their targets. These inducements include money, freedom from imprisonment and even life itself.
There are cases in which courts have allowed prosecutors to pay witness's contingent fees -- that is, bonuses -- if their testimony results in convictions. There are cases in which prosecutors have threatened to seek the death penalty unless a witness flips against a co-defendant. There are cases in which prosecutors threaten to prosecute wives, children, parents and siblings of witnesses unless they flip, to offer 10- or 20-year reductions in sentences in exchange for favorable testimony . . .
A literal reading of the statute [18 U.S.C. Section 201] would encompass the offers and threats routinely made by prosecutors to secure the testimony of witnesses. After all, it applies to "whoever," and "any," but the courts have ruled that prosecutors are exempt from the words of the statute. Only defense attorneys and their clients are covered by it, despite the broad language.
So, if they want to get you, they have an infinite number of things to prosecute you for, and can make whatever threat they want -- even the death penalty! -- to get witnesses to testify against you. I guess your best strategy is to lie low and hope they don't notice you.
But suppose you are an obvious target -- somebody too rich and too successful to avoid the prosecutors' notice. Like, for example, one of the top hedge funds. What are you going to do? You might be interested in this from the New York Law Journal of May 1. The article is about Soros Fund Management (yes, that's Soros as in George Soros) having just hired a guy named Boyd Johnson III to be its new General Counsel. Johnson was formerly the number 2 prosecutor (under Preet Bharara) in the Southern District of New York -- the office famous for prosecuting one hedge fund after another on dubious charges.
[Johnson] follows a well-worn path of former top federal prosecutors heading to prominent in-house roles at hedge funds. Kevin O’Connor, a former top U.S. attorney in Connecticut, became general counsel of Steven Cohen’s Point72 Asset Management LP in 2015. Earlier that year, Jenna Dabbs, a former narcotics chief in the Southern District of New York, joined William Ackman’s Pershing Square Capital Management LP as senior counsel at a member of the investment team. Richard Zabel, who succeeded Johnson as deputy U.S. attorney in Manhattan, also headed to a general counsel role in early 2015 at Paul Singer’s Elliott Management Corp.
If you hire one of these guys, then if the remaining prosecutors want to get you, you put them in the position of going after their good old trusted friend and colleague, or maybe even their old boss. Clever! Probably, rather than do that, they will pick on someone else. By the way, if you are wondering what one of these jobs pays, a good estimate would be $3 million per year and up. Nothing corrupt about this, of course. These are the ex-prosecutors! They're the good guys!