Apr 27, 2014

Book Review: The Federal Prosecutor, An American Horror Story

Licensed to Lie by former Assistant
United States Attorney and Chief of
of the Appellate Section for the
Western and Northern Districts of Texas,
U.S. Department of Justice
In Sidney Powell's Licensed to Lie: Exposing Corruption in the Department of Justice (Brown Books Publishing Group, 2014) the villain is the United States Department of Justice and a host of federal judges.

In tales that would rival any legal thrillers or action-packed novels by John Grisham or Nelson DeMille, Ms. Powell systematically and cogently lays out stories of death, deceit, and corruption plaguing the DoJ in this non-fiction account of the betrayal of America.

The stories are somewhat familiar to us as recent history—the Enron collapse and the wrongful prosecution of the longest-serving Republican U.S. Senator in history—but what we think we know is turned on its head as we learn what really happened.

With this work, the former federal prosecutor and appellate attorney Ms. Powell stands among the great whistleblowers in modern American history as she exposes the injustices and inhumanities perpetrated by the self-aggrandizing members of two federal DoJ task forces, who truly had a license to lie and to destroy innocent lives without any federal prosecutor having conscience enough to even acknowledge the suffering they caused.

Many jurists already know of Sidney Powell's brilliance and dedication, and Licensed to Lie should be required reading for every high school political science class, every undergraduate college constitutional law class and a must-read for any American of whatever political persuasion with a passing interest in freedom.

No one reading this work can do so without being appalled by the intentional and repeated injustices inflicted onto the innocent.

Steven J. Phillips published No Heroes, No Villains (Vintage, 1978) explaining the procedures of criminal law in a gripping account of a real-life criminal law, murder case. Phillips' classic work today is quaint. In today's culture, the American prosecutor is not a friend, not a force dedicated to justice, and in a civilized and truthful explication is a villain.

"The right to do what the law does not prohibit, without fear of harassment or punishment, is one of the hallmarks of a free society." —Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit (foreword)

"I wondered if my friends, Judges Carl Stewart, Jacques Wiener, and, Pete Benavides, along with (Judge) Ewing Werlein, who denied all our motions for release twice, even knew, considered, or cared about what their wrong decision had done to this young man [the proven-innocent Bill Fuhs, represented by Seth Waxman] and his family." —Sidney Powell, Licensed to Lie (p. 144)

Enron Task Force

The Houston-based Enron Company morphed from a hard asset pipeline company into a sociopathic energy-trading company in the 1990s, led by Jeffrey Skilling and Chief Financial Office, Andrew Fastow. (p. 13)

In 2001, Enron—with its myriad equity funds, frauds and shell games—imploded into the largest corporate collapse in United States history.

This collapse was a good thing for some, a perfect opportunity to make careers for a collection of prosecutors lacking ethics and working pathologically in pursuit of power—their own power.

Find some people, make up crimes, prosecute these people, and these innocents and their families will just have to suffer.

This is precisely what occurred, during the Enron Task Force prosecutions that saw innocent Americans implacably pursued by a criminal, out-of-control band of prosecutors operating under cover of the United States of America.

As noted by Sidney Powell, "Incited by public outrage, political pressure and cries for vindication from Enron shareholders, the Department of Justice promptly [January 2002] assembled the Enron Task Force—a joint effort of the department, the SEC, the FBI and the Internal Revenue Service. Because of the Bush connection to Ken Lay, the Enron Task Force was untethered from the department." (p. 25)

The Task Force was staffed with ambitious prosecutors from across the country, and was given virtually unlimited resources.

The Task Force was also untethered from ethical adult supervision and prosecutors looking to make a career from the ashes of Enron determined to get somebody, anybody in their pursuit of a group of innocents, along with the perpetrators at Enron.

Ms. Powell working in various capacities in defense of the innocent (particularly James Brown of Merrill Lynch) worked tirelessly in her advocacy, facing the corruption of the prosecutors of the Task Force acting as a veritable Star Chamber in some instances, aided by an oppressive judiciary in the Fifth Judicial Circuit, so unyielding and committed to letting obvious injustices go uncorrected that this brilliant veteran jurist, Sidney Powell, witnessed the physical disintegration of innocent people and their families as an oblivious nation immersed by the trauma of 9/11 never knew their story, until now.

Powell names the names, (Task Force leaders and prosecutors, Leslie Caldwell, Andrew Weissmann and Matthew Friedrich, for example) and tells the facts, and nothing in the U.S. Department of Justice (DoJ) ought to be the same after this story is told of American criminal justice as an American horror story inflicted by federal prosecutors.

Any impediments, lawful duties of federal prosecutors such as the disclosure of exculpatory information to the defense (the Brady Rule), were abandoned in the frenzied quest to secure criminal convictions of innocent people.

The former federal prosecutor, Powell, concludes: "As long as they [a small group of federal prosecutors] are free from accountability, the innocent are at risk and the public can have no confidence in our legal system." (p. 403)

Polar PEN

In roughly the same timeframe as the Enron Task Force was unleashed, overzealous DoJ prosecutors from the Public Integrity Section (PIN) of Main Justice targeted U.S. Senator Ted Stevens (R-Alaska; 1968-2009) in a prosecution so disingenuous and self-consciously artificial that the presiding federal judge, U.S. District Court Judge Emmet Sullivan (aided in part by an FBI agent who blew the whistle on the prosecutors), after learning of massive and systemic withholding of exculpatory evidence by federal prosecutors, ordered a special prosecutor (Henry F. Schuelke III) be empaneled to investigate the criminal wrongdoing of the prosecution.

The DoJ PIN in this period operated an ongoing investigation into alleged public corruption in Alaska, nicknamed Polar PEN, begun in 2004.

Sidney Powell chronicles the criminal prosecutions and blatant miscarriage of justice caused and committed by Polar PEN, that resulted in at least one suicide, heroic whistle-blowing of prosecutorial misconduct by a FBI agent, Chad Joy, the unlawful and wrongful 2008 conviction (later set aside at the request of Attorney General Eric Holder in 2009) of World War II hero and Senator Ted Stevens that ruined Stevens' political career, and the appointment of a special prosecutor to investigate the prosecutorial misconduct.

Two main perpetrators of Polar PEN are Matthew Friedrich and Rita Glavin. who took over control and manipulated the prosecution of Stevens, but who, Powell notes, "were way too politically connected and savvy to take the fall." (p. 8)

The failure of the Polar PEN prosecutors of Stevens to turn over exculpatory evidence the prosecution had in its possession should have landed the bunch of legal thugs in prison; the Polar PEN persecutors were guilty though not ultimately held accountable, the grisly suicide of Nicholas Marsh, PEN prosecutor notwithstanding, who found himself on the wrong side of a criminal investigation.

Marsh committed suicide after being investigated for his (and several others') criminal withholding of exculpatory evidence from Sen. Stevens.

Cases without Crimes

"I wondered how much the Enron Task Force had collaborated with the Polar Pen prosecutors and  who had concocted all of these overly creative cases without crimes as bogus 'honest services' allegations. The prosecutors had obviously cross-pollinated to produce baseless crimes and tortured law in both major investigations. The Enron Task Force cabal had about a two-year head start on Polar PEN, but the investigators and prosecutions overlapped for several years," writes Powell. (pp. 238-239)

Powell does not put the corruption of these atrocities in the context of American legal history, in the context of what Attorney General Robert H. Jackson warned federal prosecutors about in his memorable April 1, 1940 address: "Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just."

It's for the reader to decide the relevancy of jurists like Jackson.

Nor does Powell mention the contemporaneous U.S. Attorneys scandal though the creative employment of the Honest Services statute was used extensively by unscrupulous U.S. attorneys such as Steven Biskupic (Eastern District of Wisconsin, 2001-2008) in his infamous Georgia Thompson prosecution, a case without a crime reversed in oral arguments in a spectacular action by a three-judge panel for the Court of Appeals for the Seventh Circuit in 2007.

Wrote Chief Judge Frank Easterbrook: "Thompson was convicted under 18 U.S.C. § 1341 as well as under § 666. Section 1341 forbids 'any scheme or artifice to defraud' that predictably employs the United States mails. What 'fraud' did Thompson commit, and who was the victim? Thompson did not bilk the state out of any money or pocket any of the funds that were supposed to be used. ... (I)n response to McNally v. United States, ... Congress enlarged the scope of criminal fraud by enacting 18 U.S.C. § 1346. This statute provides: For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services. ... It is linguistically possible to understand 'private gain' as whatever adds to the employee's income or psyche-anything the employee would pay to have, rather than pay to avoid-but the Rule of Lenity counsels us not to read criminal statutes for everything they can be worth. ... Thompson's conviction is reversed, and the case is remanded with instructions to enter a judgment of acquittal." (U.S. v. Georgia L. Thompson, argued and decided on April 5, 2007)

Honest services. This is an ironic statute used by a gang of outlaw prosecutors who have no conception of honesty and even less regard for public service.

We can be grateful to Judge Richard Posner, also of the Court of Appeals for the Seventh Circuit, for writing an important opinion this last January (Fields v. Wharrie, 2014 U.S. App. LEXIS 1333) that establishes the right of the wrongfully convicted to sue corrupt prosecutors, who in Posner's opinion, no longer enjoy the absolute immunity used by prosecutors as a license to lie.

Every prosecutor who withheld exculpatory evidence, as demonstrated by Powell, should face a civil action from his and her victims.

Powell's appellate brief on Honest Services devastated the DoJ's use of its myriad "honest services" prosecutions in several cases, a catch-all invention that these prosecutors used for its apparent fun and their profit. (pp. 298-99)

But the suffering endured by the many innocents she describes, and the utter lack of integrity, fair play and justice by the federal prosecutors leave Ms. Powell without faith in the American legal system as a forum where justice might be attained.

Outside of a small group of jurists, and friends and family of the innocents, who among us knows and cares that deceitful federal prosecutors remain free as victims struggle to build shattered lives?

Powell throws this question to the reader:
The games and tactics of (federal prosecutors) Friedrich, Ruemmler, Weissmann, Caldwell, and others on the Enron Task Force should never have been tolerated by the Houston federal judiciary or by the Fifth Circuit—much less invigorated by Friedrich and Glavin as heads of the Criminal Division of the Department of Justice to pervert the trial of a United States Senator. There is no telling how many others have been or will be wrongfully convicted as this cabal of corrupt cronies ambitiously climbs and weaves through the highest ranks of the Department of Justice, the FBI and the White House—in between their powerful partnerships in some of our country's most prestigious and influential law firms.

What happened to the defendants in this book can happen to anyone. Blind judges do not render blind justice.

If it were your husband, your sister, your child on trial, what should the rules be? Should the prosecutors be required to disclose everything that only he possesses that is favorable to the defense? Should those who are supposed to enforce the laws be required to abide by them?

Senate Bill 2197, the Fairness in Disclosure of Evidence Act (codifying the Brady Rule), is still sitting in Congress. It would create a clear rule that federal prosecutors must produce all evidence favorable to the defense. (pp. 402-403)
Its fate, and the fate of justice is ultimately up to the American people.

The United States of America seems to have lost its way; it surely has lost its moral compass as the prosecutor and the judiciary inflict grievous harm onto innocent people in the name of justice.

A problem for the public is that what Sidney Powell writes about, what Powell warns us about, occurred and is occurring off the public's radar, beyond our awareness and thus beyond the reach of decency and the rule of law that could not be found by the innocent.

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