How the “Independent” Fourth Estate Has Failed in its Critical Duty

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!

But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.

Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.

The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.

Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.

Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2008 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).

This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”

So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)

Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.

Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.

Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.

Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.