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Scott Horton Speech

Scott Horton Speech

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Published by Roger Shuler
Speech by Scott Horton about Justice Department abuses.
Speech by Scott Horton about Justice Department abuses.

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Published by: Roger Shuler on May 10, 2010
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When Prosecutors Run Amok--And What To Do About It
Remarks for a Luncheon of the New York Rotary Club and American Constitution So-ciety, Harvard Club, New York City, May 3, 2010The American Founding Fathers had a strong sense that humans by their nature seekpower and abuse it if they have an opportunity to do so. This recognition led to theelaborate system of checks and balances they wove into our Constitution, a systemthat has served us well for more than two centuries. But our checks and balances sys-tem isn't complete and we still have some testy problems. Today I want to take up oneof them. I'll start with the ancient question: who guards the guardians? The guardi-ans of our system are to a large extent the federal prosecutors. They play an essentialrole in our society. Through the power of inquiry and investigation they ferret out cor-rupt conduct and criminality and with the power of prosecution they enforce the laws.The 93 U.S. attorneys and the thousands of assistant U.S. attorneys wield enormouspower and influence. To a large extent their vision of what is law and who are crimi-nals governs and shapes our society. They can and have historically been a force forenormous social transformation in our country. In the era after Brown v. Board ofEducation, for instance, federal prosecutors played a critical role in ending desegrega-tion and giving to civil rights granted at the end of the Civil War. I grew up thinking ofthe Justice Department as a bastion of the forces of good. They protected us from themob and they worked selflessly to insure that all Americans had a fair shot, includingthe right to vote and the right to secure a decent education. But there was also alwaysa dark side to this power.In concept, the prosecutorial power should be separated from partisan politics, andspecial protections are put in place to avoid the partisan political direction of criminalcases. However, that has always been more aspiration than reality. In fact, any seri-ous student of U.S. history would agree that we have seen historical peaks and valleyson this score. Two eras now stand out in U.S. history as particularly troubling timesfor the abuse of federal prosecutorial power. The first was in the heyday of High Fed-eralism, between 1797 and 1801, when Federalist prosecutors used the Alien and Sedi-tion Acts and other legislation to persecute their Republican (which is to say, Democ-ratic) opponents. The second is right now--a period in which prosecutors have broughtpublic integrity cases at a rate of roughly 5.6 to 1 against the party out of power, oftentiming these cases to maximize their effect on elections. Appearing before the HouseJudiciary Committee, former Bush 41 attorney general Richard Thornburgh statedthat he had no doubt that prosecutions were being used by the Bush 43 Justice De-partment as a tool against political adversaries; the efforts were often simply toocrude and obvious. I have interviewed several Bush-era U.S. attorneys who told methe same thing. In 2007-08, a House Judiciary Committee investigated these allega-tions, first presented in an academic study by two sociologists, and concluded that theywere substantially accurate—it also raised serious issues about more than a dozen high-profile prosecutions of Democratic public officials and donors which appear to havebeen politically motivated. This whole affair only gained limited political traction whenPresident Bush fired 8 or 9 U.S. attorneys in what came to be known as the U.S. attor-neys’ scandal. An internal investigation by the U.S. Department of Justice establishedbeyond any doubt that these dismissals were motivated by political concerns, specifi-cally that the U.S. attorneys in question either had refused to bring prosecutions ofDemocrats for political purposes or had failed to shut down investigations and prosecu-tions of Republicans. What accountability exists for U.S. attorneys who bring politicallymotivated prosecutions? The answer is none; to the contrary, it seems that those whorefuse to bring such prosecutions may be fired.
2Another major controversy has related to power grabs by the Executive after 9/11.For instance, secret memoranda were written by the Justice Department whichauthorized torture and authorized the surveillance of U.S. citizens without a warrant.In both cases this conduct the Justice Department authorized and advocated wascriminal--a felony under U.S. law. What accountability did Justice Department law-yers who wrote these memos face? The answer is none.In addition to the problem of political manipulation of the justice process, we have aneven more widespread problem, which might simply be called careerism. Youngprosecutors are supposed to be committed to doing justice, but often enough they areout to make a name for themselves and build a career. That means that it doesn’treally matter to them which party is in charge, their career is advanced by developingand prosecuting cases of the sort prioritized by the attorney general. Success is meas-ured by their “kill rate,” namely, how many convictions did they secure. This attitudein turn leads to the most common abuse, namely the suppression of exculpatory evi-dence which they are supposed to share with the defense, but which they routinely failto share when it would undermine their case. What accountability do such prosecutorsface? The answer is none.Let’s look briefly at three recent cases.
The Broadcom Prosecution
First, the Broadcom prosecution in Orange County, California. This was a run-of-the-mill securities fraud prosecution relating to the backdating of some stock options.Prosecutors went about making their case with some daring abuses of prosecutorialpower. Judge Cormac Carney, an All-Pac 10 wide receiver for the UCLA Bruins beforeGeorge W. Bush appointed him to the bench, threw out the case over prosecutorial mis-conduct. I’ll just read a brief portion of Judge Carney’s decision announced in Decem-ber, relating to just one facet of the misconduct because it’s a good list of the sort ofmisconduct that is now rampant:Dr. Samueli was a brilliant engineer and a man of incredible integ-rity. There was no evidence at trial to suggest that Dr. Samueli didanything wrong, let alone criminal. Yet, the government embarkedon a campaign of intimidation and other misconduct to embarrasshim and bring him down.Among other wrongful acts the government,One, unreasonably demanded that Dr. Samueli submit to as manyas 30 grueling interrogations by the lead prosecutor.Two, falsely stated and improperly leaked to the media that Dr.Samueli was not cooperating in the government’s investigation.Three, improperly pressured Broadcom to terminate Dr. Sam-ueli’s employment and remove him from the board.Four, misled Dr. Samueli into believing that the lead prosecutorwould be replaced because of misconduct.Five, obtained an inflammatory indictment that referred to Dr.Samueli 72 times and accused him of being an unindicted coconspira-tor when the government knew, or should have known, that he didnothing wrong.And seven, [sic] crafted an unconscionable plea agreement pursu-ant to which Dr. Samueli would plead guilty to a crime he did notcommit and pay a ridiculous sum of $12 million to the United StatesTreasury.
3... The government’s treatment of Dr. Samueli was shameful andcontrary to American values of decency and justice.The judge also notes that prosecutors seized the thirteen-year-old son of one witnessand pressured him to give false evidence against his father. These are the same sortsof abuses we regularly associate with authoritarian regimes. But all this occurred inthe United States.Wielding threats of prosecution to extort conduct from individuals and corporations isboth unethical and commonplace in today's prosecutorial world. Selective leaking ofinformation to the media to destroy reputations and taint jury pools is also unethical,possibly criminal and very common. Crafting indictments with inflammatory lan-guage is also common. Pressing family members to testify against one another iscommon prosecutorial practice.
The Siegelman Case
A second case, perhaps the best known case of political persecution, involves formerAlabama Governor Don Siegelman. As Siegelman was mounting a reelection effort,the U.S. attorney in Montgomery opened a criminal investigation focused on allegationsthat he corruptly accepted a $500,000 donation to the Alabama Education Foundation--an organization that was seeking to create a state lottery in Alabama to supporthigher education--and then appointed the donor to a non-compensated position on astate licensing board. The U.S. attorney, Leura Canary, was herself a close advisor andsupporter of Siegelman’s Republican rival, and her husband, Bill Canary--a long-timebusiness associate and close friend of Karl Rove’s--was managing a Republican candi-date’s campaign against Siegelman, which was, not coincidentally, substantially fueledby donations from casino gambling interests intensely opposed to the lottery initiative.Jack Abramoff was key to this entire process which is dramatically unfolded in AlexGibney's new documentary, "Casino Jack." The details of the criminal investigationquickly flooded the Alabama media, and an investigator traced the source of the majorpress stories back to Mr. Canary’s office. As a direct consequence of the media cam-paign, Siegelman lost the election. At trial, the prosecutors claimed that the receipt ofthe contribution combined with the appointment of the donor to an honorary office hehad held for 13 years under both Democratic and Republican governors was a bribe.Interestingly, the Justice Department raised no issue and conducted no investigationinto the 146 individuals who made contributions of $100,000 or more to the Bush-Cheney campaign and then received an appointment to federal office or to the Bush-Cheney transition staff. The prosecutors relied heavily on the evidence of an aide toSiegelman named Nick Bailey, who testified that there was a simultaneous exchange ofa check and a promise to appoint the individual to a board. This testimony was objec-tively false, as later became apparent. Moreover, the prosecutors apparently knew itwas false, but they decided to use it just the same. Moreover, it seems they extorted it.Bailey later disclosed in an interview with CBS News that he had been coached and ca- joled in more than 70 interviews with the prosecutors, nearly all of them without hislawyer. As Bailey recounts, he was effectively told precisely what testimony to giveand what not to give, and when he said he had no clear recollection of the key incidentinvolving a check, the chief prosecutor threatened to disclose to the media that Baileywas a closeted homosexual. That may not be a big deal in New York, but in Alabama itcertainly is. Now Bailey is a convicted fraudster, so perhaps his evidence is not worthmuch--though that really raises the question of why prosecutors would rely on such acharacter for such an essential charge, especially when they knew it was false. But wedon’t have to rely on Bailey’s word for this--I have interviewed two members of theprosecution team, and each fully corroborated Bailey’s charges. Moreover, the notes ofthese 70 interviews, which would have shown Bailey stating that he really didn’t recall

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