One should rejoice that some trial judges are expressing skepticism about the tactics of Robert Mueller’s special counsel’s office (see here, here, here), and that defendants are increasingly willing to fight back (see here, here). Anyone with a taste for irony will appreciate that a Russian oligarch’s company Mueller indicted, which was expected to remain cowering behind the Kremlin walls, has shown up in court as a champion of American civil liberties.
But it would be unfortunate if the only result of the brouhaha were to make this particular witch hunt disappear. Mueller’s investigation is showy and politically important, but it is not unique. It embodies our administrative state, an epiphenomenon of a serious disease of the legal system.
I count nine related trends that have led to our present state.
The U.S. Legal System Has Gone Berserk
First, the U.S. legal system has gone berserk. Once, reading the Ten Commandments and consulting the community’s moral compass was a good guide to behavior. Now, no one can calculate the number of laws and regulations that are punishable by criminal sanctions or equally damaging “civil” fines and forfeitures, but it is in the tens of thousands. Many are vaguely defined or do not require knowing ahead of time that the action is illegal, and even the most punctilious of us cannot be sure of compliance.
Any business person certainly, any citizen probably, engages in actions almost daily for which he could be prosecuted. Even on those days when they accidentally obey all laws, people do things a zealous prosecutor might characterize as illegal, especially when they involve complex issues of tax, finance, or regulation. In American Greatness, Julie Kelly aptly described the current situation as “The Rape Culture of Politics by Investigation.”
Second, the various agencies that administer these laws are captured by special interests, including the ideological. Of course, different agencies are controlled by different and competing interests, and one agency can threaten you with jail for doing what another agency requires.
Defending Yourself Can Easily Ruin You
Third, the cost of defending oneself is ruinous. The cost is magnified because prosecutors and regulatory agencies often eschew closure, stretching out proceedings to increase financial and psychological pressure on the targets.
Fourth, prosecutors love what are called “process offenses,” new crimes committed in the course of the investigation. Usually, such offenses consist of allegedly telling an untruth to a federal official. But telling the truth is not sufficient protection, because another witness may remember things differently. FBI agents also do not record interviews, they take notes, then tell the jury their version of your statements.
Fifth, it is a small step to shift from targeting crimes to targeting individuals. This started with the Mafia. Everyone knew they were criminals, so it made sense to pick the targets and find something on them. The approach was extended to finance. Then Republican politicians moved into the cross-hairs: Ted Stevens, Tom Delay, Bob McDonnell.
Now it has shifted to a president disliked by most of the elites of both parties. Conservatives think, and with good reason, that the deep state has been weaponized against them.
Sixth, the best way to target an individual is to find others who might know something about him, then comb his affairs to find a crime or catch him in a process offense. The goal is to get the witness to “sing,” but, as the judge noted during a recent hearing on Paul Manafort, a person threatened with jail or ruin may “compose” as well. Given the reality that everyone can be colorably accused of something, prosecutorial abuse becomes inevitable.
Citizens’ Security Depends on Prosecutors’ Whims
Seventh, the system leaves the protection of the citizenry up to the good faith of the prosecutors. Courts will not intervene to protect against outrageous tactics or selective prosecution, as prosecutors are given an almost-irrebuttable presumption of good faith.
Increasingly, it is clear that this deference is ill-advised, as one instance after another of malfeasance and political motivation surfaces. One indication of the extent of the problem can be found in a law journal article in 2006 that discussed prosecutors’ compliance with their duty to inform a defense of exculpatory evidence. It quoted a study that identified 381 homicide convictions that were vacated “because prosecutors hid evidence or allowed witnesses to lie.” This is, of course, the tip of an iceberg of unknown dimensions.
Most prosecutors are honorable. It is not in the job description that one must be an ambitious bully with limited empathy and an elastic view of ethics. But any lawyer with that personality will be drawn to the prosecutor’s chair, and, for reasons well-recounted by ex-prosecutor Ken White, the culture of the job accentuates these traits in anyone. If one of this ilk achieves a position of authority, he will of course choose staff of similar bent.
If a skate-the-line approach goes unchallenged by the courts and leads to success, then, in some weird legal Gresham’s law, these personality traits become ever more dominant. Abuses in New York state roll on, regardless of who sits in the attorney general chair.
Lots of People Make Lots of Money On This Corruption
Eighth, the system has morphed into a cash cow for progressive organizations. The U.S. Department of Justice, in cahoots with federal regulators, adopted policies whereby companies accused of violations could settle by paying money to various worthy private organizations, all of which turned out to be affiliated with the Left. The scale of the transfers is impressive. In one instance, it ended in more than $300 million to various nonprofits involved in Indian affairs.
DOJ recently ended the practice for federal settlements, but it continues in the form of settlements of class action civil suits (an issue the Supreme Court took up for next term, after years of abuse). It also continues at the state level, as in New York, where Attorney General Eric “Schneiderman went way, way beyond [previous AG Elliot] Spitzer in using his shake-down prosecutions to collect fines and penalties in massive slush funds in the AG’s office itself, that he could use to pass out to friends and supporters.”
Ninth, the legal profession is complicit in this rapacious over-criminalization. While the problems have grown and festered for decades, the legal academy and profession ignore them, except for occasional hand-wringing on the way to the bank, because desperate people pay handsomely.
Individual lawyers represent their clients zealously within the system as it exists, but the economic interests of Big Law as an institution align with those of the prosecutors, not the clients. The idea is to keep the laws draconian but uncertain, with harsh penalties always a prospect and proceedings protracted. Somehow, reform just never seems to happen.
Other large institutions also have mixed motives. Compliance costs fall more heavily on small businesses and innovators than on large firms, so the latter can actually regard the craziness with satisfaction.
Also, to the extent governments use fines and settlements to transfer resources from business to favored constituencies, governments must ensure that the targets have the resources to make the payments. While the news columns are filled with stories of financial or health industry firms paying penalties, the business pages show increasing consolidation and rising stock prices, as government favoritism guarantees fat returns.
There’s a Ray of Hope
The list of these malformations of the legal system is depressing, and given their power, it is hard to see how to reform. But the Mueller investigation and the reactions to it hold out at least a ray of hope.
Like any political structure, this system depends on its political legitimacy, upon citizens accepting that its exercise of authority is right and proper. If legitimacy is lost, then change becomes not only possible, but perhaps inevitable.
This legitimacy is being attacked. It was extraordinary to see Mike Caputo, a witness caught up in the Mueller investigation, tell a congressional committee: “God d-mn you all to h-ll.” Equally extraordinary were the refusal of the committee members to refute his facts or defend themselves, and the public’s reaction, which was to contribute to Caputo’s legal defense fund.
Judges are also having serious second thoughts, as they confront the reality that prosecutors have lied to them in the past, and feel little concern about doing so in the future. The thread holding up presumption of regularity is frayed.
Above all, political forces are attacking this corrupt system. Half the country—the Trump half—is aware that something is deeply wrong. So perhaps change is possible. As the proverb says, a journey of a thousand miles begins with a single step, so, one judge and one defendant at a time, the excesses might be curbed.