It's time to send a message: Hold unethical prosecutors accountable
Where the Department of Justice is the accuser, prosecutors have little appetite for flexibility and explanation. The least infraction regularly results in an indictment and often a prison cell.
When prosecutors or FBI agents are the accused, however, there is a markedly different response. Excuses are accepted at face value. Mistakes are forgiven. And decisions not to prosecute DoJ employees are justified by claiming that the case is "just too difficult." The hypocrisy is breathtaking.
Take the former deputy director of the FBI, Andrew McCabe. According to DoJ inspector-general Michael Horowitz, McCabe repeatedly lied to investigators, sometimes under oath, sometimes by concealing material information, and sometimes by just plain lying. Despite the inspector-general making a criminal referral to the Justice Department for prosecution, no charges were filed.
Something similar is playing out in a New York courtroom, where a federal judge is asking tough questions of DoJ prosecutors. After securing a conviction of Ali Sadr in March for money-laundering, the United States Attorney's Office for the Southern District of New York suddenly asked the court to drop the case. The reason? Prosecutors were caught violating their ethical duties to disclose evidence favorable to the defense.
What's worse is that when the whole case threatened to explode, one assistant U.S. attorney suggested something even more sneaky to get out of the fix prosecutors were in: "I'm wondering if we should wait until tomorrow and bury it in some other documents." A second said: "That's fine, too." By conspiring to hide the evidence, prosecutors hoped they wouldn't be caught.
With someone's freedom at stake, prosecutors were playing games by withholding information that may have allowed the defendant to clear his name. When that didn't work, they tried to slip one past the defense and the judge. Let's call this what it is: obstruction of justice.
When all this came to light, federal judge Alison Nathan ordered prosecutors to explain themselves.
Their response? "Oops. No harm. No foul." Seriously. In a letter to the court, acting U.S. attorney Audrey Strauss explained: "We do not believe that any information was improperly withheld from the defense, in the sense of knowing that it had to be disclosed yet not disclosing it. But many items were discovered or disclosed far too late."
What is the meaning of "improperly"? I suppose that is a little like asking what the meaning of "is" is.
The objective reality is that information that may have cleared the defendant was withheld by the government. And when prosecutors finally understood their ethical obligations, they attempted to obstruct the court and the defense by burying the information.
But it's okay because, according to the acting U.S. attorney, "the Government made a point of disclosing other interview and documentary material that we believe went beyond the Government's disclosure obligations."
Sure, we didn't give you anything to clear your name, but we gave you lots of other stuff.
Every first-year law student knows that prosecutors have a duty of candor to the court and an ethical obligation to turn over evidence that could help the defense in a criminal case. Add to that trying to bury the information to avoid accountability, and you have a classic case of obstruction of justice.
Most prosecutors are honest and hardworking public servants. But talk to any criminal defense attorney, and he will tell you horror stories involving gamesmanship in the discovery process by a few bad apples. Who defines what is "evidence favorable to the defense"? When does it have to be turned over? Can it be buried in a stack of thousands of documents, where it may never be seen? These are recurring issues that go to the heart of the Constitution's guarantees afforded to those who are innocent until proven guilty.
The Sadr case in New York is a perfect example of why more transparency and oversight of prosecutors are required. Fortunately, Utah's senior senator, Mike Lee, has legislation that would do just that. The Inspector General Access Act would empower the Justice Department's inspector general to investigate allegations of unethical conduct made against federal prosecutors. Predictably, the DoJ and the National Association of Assistant U.S. Attorneys are opposed.
The Justice Department's reputation has taken a beating in recent years. The growing perception that the DoJ treats its own better than regular citizens only makes things worse. If the Justice Department is to protect its reputation, it will embrace Senator Lee's bill.
The same penalties meted out to ordinary citizens charged with obstructing justice should be applied to unethical federal prosecutors in the Sadr case and others like it. We need to send a message that playing games with a person's freedom won't be tolerated anymore.
David Safavian is the general counsel for the American Conservative Union.
US
Attorney General Barr gives fascistic tirade against Antifa, Black Lives Matter
11 August 2020
In a television interview
Sunday night on Fox News, US Attorney General William Barr declared that some
of the Democratic representatives who questioned him at a congressional hearing
two weeks ago were revolutionaries seeking to overthrow American capitalism, in
league with terrorists.
The fascistic rant—whose
logical conclusion is
the criminalization of all
political opposition to
the Trump
administration—came in the course
of an appearance on “Life,
Liberty & Levin,” a
Sunday night interview
program.
Barr began with fulsome
praise for the police, attacking the Black Lives Matter movement and the
protests against police violence that swept the United States after the May 25
police murder of George Floyd. “The
fact is, generally speaking, we have superb police in this country,” he said.
“There will be some instances of excessive force, but by and large it’s an
excellent police force. And if they’re going to be demonized like this, they’re
not going to work in these cities.”
Host Mark Levin, in what
appeared to be a choreographed effort, cited a report by an ultra-right think
tank on the loosely organized protest group Antifa (antifascist). The Gatestone
Institute, which sponsors brazenly Islamophobic “research,” was chaired until
2018 by John Bolton, who then joined the Trump administration as national
security adviser.
The
Gatestone report cites material produced by the Verfassungschutz, the German
secret service agency that has placed the German Trotskyists of the
Sozialistische Gleichheitspartei (SGP—Socialist Equality Party) on its
surveillance list, while giving its stamp of approval to the Alternative for
Germany (AfD), the principal vehicle for the revival of neo-Nazi trends in
Germany.
The report presents Antifa
as a large, well-organized international conspiracy of tens of thousands of
militants, although it is invariably described by supporters as little more
than a signboard used by anarchists and other protesters in different
localities, who communicate through social media but do not constitute an
organization in any real sense of the term.
Barr hailed the Gatestone
report—which quotes his own comments about Antifa—and launched into a diatribe
against Antifa. “They are a revolutionary group that is interested in some form
of socialism, communism,” he said. “They’re essentially Bolsheviks.”
He went on to claim that
Antifa used “fascistic” tactics. According to Barr, they infiltrated the mass
protests against police violence. “What they do is, they are essentially
shielding themselves or shrouding themselves in First Amendment activity,” he
said. “They hijack these demonstrations and they provoke violence. And they
have various tiers of people from the sort of top provocateurs down to people
who are their minions and run the violent missions.”
He continued, “It’s a new
form of urban guerrilla warfare. Mao Tse-Tung used to speak about the guerrilla
being like fish swimming in the ocean the way the guerrilla moves through the
people. The guerrilla hides out among the people as a fish in the ocean.”
The purpose of this demented
presentation, issued without the slightest attempt to present any evidence, was
to make an amalgam stretching from the alleged violent protesters through Black
Lives Matter and other groups organizing the anti-police protests, to the
Democratic Party.
Barr described this entire
range of political opinion as though it were a unified and coherent political
tendency, which he described as “the left,” which was seeking power through a
coordinated campaign to remove Trump from office. All those opposing Trump
constituted “a Rousseauian Revolutionary Party that believes in tearing down
the system.”
“Anyone with eyes can see what’s happening,” he declared. “They see the
violence. They see these groups of agitators and their black outfits, their
helmets and their shields, which, incidentally, have the hammer and sickle on
them most of the time, are rushing the police, causing violence, throwing
rocks… You don’t see it on any of the national news. You don’t see it on the
networks. You don’t see it on the cable stations. And yet you hear about these
peaceful demonstrators, so it’s a lie. The American people are being told a lie
by the media.”The attorney general included the corporate
media in this amalgam, claiming that the media deliberately concealed evidence
of widespread Antifa violence in Portland, Oregon and other US cities.
There is a definite
fascistic content to the type of political amalgam concocted by Barr. Just as
Trump tweeted that Black Lives Matter protests constituted “treason”—a crime
punishable by death—Barr suggests that “the left” is at war with the Trump
administration and “America,” and should be treated accordingly.
Referring to the House
Judiciary Committee hearing, where there was mild criticism of federal police
tactics in Portland, Barr said that some members of the committee were “true
believers” and “essentially revolutionary,” while the majority were “cowards
who are mostly interested in getting reelected.”
After
reading those words, dripping with menace, it is necessary to remind oneself
that Barr is not a Nazi jurist condemning all opponents of the Führer to be hanged. He
is the chief law enforcement official of a government that is nominally
democratic, where public opposition to the president is legal, and where the
First Amendment to the Constitution guarantees such rights as freedom of speech
and freedom of assembly.
Despite his phlegmatic
demeanor and lawyerly
word-juggling, however, Barr
has much in
common with Carl Schmitt,
the principal legal
theorist of the Third Reich.
That such an individual is
the nation’s chief law enforcement official and presides over the machinery of
the “justice system” of the United States testifies to the rotted out,
degenerate and profoundly antidemocratic character of “American democracy.”
Genuine democracy is incompatible with the staggering levels of social
inequality that prevail in the US. More accurately, the United States is an
oligarchic society that has yet to fully shed the trappings of bourgeois
democracy, but, in the face of mounting social tensions and a growing threat of
working-class revolution, is lurching toward dictatorial forms of rule.
Trump’s attorney general is
well aware that groups like Antifa and acts of minor vandalism—overturning
fences outside federal buildings and setting small fires—are no threat
whatsoever to the capitalist system. In his reference to the Bolsheviks,
however, Barr reveals his real fears and those of the entire American ruling
elite, whether pro-Trump or anti-Trump.
For their own political reasons, they choose to lump together the threat from below, from the working class, and their opponents within the ruling elite, in the Democratic Party. But it is the working class that is the real target of the repressive measures that Barr & Co. are preparing.
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