Prosecutors these days don’t need to prove that the defendant committed an illegal act. Unencumbered by any judge or jury, prosecutors have the power to ruin people’s lives for the “crime” of what they say or think.
That’s what’s happening in the high-profile, politically-tinged cases of Michael Flynn, Roger Stone, Michael Avenatti and others.
In the case of Flynn, the former National Security Advisor, the FBI decided beforehand to downplay their interview of him by presenting it almost as a social call.
Then they asked him questions to which they already knew the answers, for the sole purpose of tricking him into a lie or a fudging of the truth.
They made no recording of their conversation, so we don’t really know what Flynn said. But according to the two FBI agents in the conversation, Flynn was deceptive in his answers.
On that basis, they destroyed this decorated Lieutenant General’s reputation, livelihood and lifetime savings.
All this was for the purpose of pressuring him into cooperating with the Russian collusion case they were building against the President, the case that the special prosecutor later debunked. The FBI knew Flynn didn’t possess the financial wherewithal to mount a defense, so they gambled that he would do, say and testify to whatever they asked.
It worked. Flynn agreed to cooperate in their investigation and even plead guilty to the charged “crime” of lying to them.
Flynn later sought to withdraw his guilty plea after investigation of the FBI showed their blatant political bias and deception in the investigation of the president. The current Attorney General has appointed a career prosecutor to look anew at the entire case.
Roger Stone was an unsavory political strategist who was involved with Wikileaks and other shadowy characters in uncovering emails and evidence damaging to Hillary Clinton’s campaign. His arrest was accomplished with a pre-dawn raid on his family home by 29 heavily armed FBI agents.
Like Flynn, he was never charged with any crimes for which he was investigated but was charged instead with lying to the investigators. And for “witness tampering” for his discussions with other people that were interviewed in the investigations.
The judge – an Obama appointee – didn’t like some of his political statements outside the courtroom, and imposed a gag order on him. He was convicted by a jury whose forewoman was a Democratic activist that had tweeted her bias in advance of, during and after the trial.
The Justice Department prosecutors sought a 7 to 9-year jail term. The Attorney General overruled them. Even the Obama-appointed judge thought that was “excessive” and instead sentenced him to less than half that.
Republicans are not the only ones to suffer thought crime and speech crime prosecutions.
Take Avenatti, the flamboyant and distasteful Democratic activist and lawyer for the stripper who sued the President.
The modus operandi of most plaintiff’s lawyers is to threaten to bring a case unless the target of their threat agrees to a payoff. And so Avenatti recently threatened the Nike shoe company with disclosing Nike’s actions in buying off student athletes.
Nike went to the cops, who decided that Avenatti’s threat amounted to criminal extortion. At trial, they won a conviction that could imprison Avenatti for the rest of his life.
Avenatti is a bad apple, but revealing Nike’s actions is not a crime. It became a crime – the so-called crime of extortion – only when he asked for money not to reveal Nike’s actions.
How is it a crime to threaten to do something that is not a crime unless someone pays you money not to? Under that logic, it’s criminal extortion to threaten to sue someone for causing a traffic accident unless they agree to pay you money for their damage to your car.
OK, one more. It’s a crime under federal law to “obstruct” the administration of “justice.” The House of Representatives charged the president with “obstruction of justice” in their impeachment articles.
The basis for their charge was the president’s assertion of executive privilege in telling subordinates not to testify before the House. But executive privilege is a long-standing and bona fide assertion which Obama and most other presidents have employed in order to protect confidential discussions in the White House.
The House could have tested Trump’s assertion of executive privilege in court, as the Watergate special prosecutor did successfully with Nixon. But instead they just unilaterally deemed it a criminal offense justifying impeachment. They assumed the roles of prosecutor, judge and jury.
I’m a lawyer, and I realize I’ve ignored some of the finer points in these laws. Moreover, I recognize that the cases I’ve mentioned are different in important ways. But the common thread is that we’ve criminalized what a person says and thinks apart from what he does.
In combination with prosecutions that are politically motivated to begin with, the end result is a totalitarian-style criminal justice system that is used to ruin people who are out of favor.
Maybe you’re on one side of the political spectrum and don’t like Stone or maybe you’re on the other side, as I am, and don’t like Avenatti. But prosecutors can do this to anyone. You and I escape their prosecutorial persecutions only because we’re off their radar screen. For now.
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