The Thin Line Between Activism and Obstruction

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

This week, I’ve had the pleasure of guest-blogging on the Conspiracy and expanding upon discussions from my book, Three Felonies a Day: How the Feds Target the Innocent. I’ve examined the Supreme Court’s skepticism toward honest services fraud; aggressive prosecutors using malleable terrorism laws to target unpopular lawful expression; unwary businessmen becoming financial scapegoats; and the lack of media scrutiny over the Justice Department’s overreach. And this barely scratches the surface of the problems caused by investigations and prosecutions based on vague federal criminal statutes and regulati­ons that encompass much ordinary and innocent activity.

A Heritage Foundation study published in June 2008 found that over 4,450 federal crimes exist, and there’s no doubt that number has increased since. (Recall the three separate federal statutes criminalizing “material support” of terrorism, and the joint NACDL-Federalist Society letter (PDF) pointing out to Congress the statutory redundancy of the Fraud Enforcement and Recovery Act of 2009.) With many of these statutes near-impossible for the average citizen (or, I might add, the above-average lawyer) to understand, and many lacking important “mens rea,” or intent requirements that are common to state but not federal law, the average professional going about his or her daily business could become the target of federal authorities.

How do I know this? For one thing, because it nearly happened to me.

In the early 1980s, the Boston United States Attorney’s office launched a top-to-bottom corruption probe into the administration of Boston Mayor Kevin H. White. It was obvious that then-U.S. attorney William F. Weld—who would later serve in both appointed and elected high offices—was gunning for the scalps of as many city hall officials as he could gather, in the hope of “climbing the ladder” and eventually reaching the mayor himself. In Three Felonies a Day, I tell the tale of Weld’s stretch of federal money laundering laws intended to ensnare White’s friend—and my client—Theodore Anzalone for a series of transactions that did not  clearly violate federal statutes and regulations as they existed at the time. The goal was to pressure Anzalone to “sing” and land his friend—the great White—in federal prison. (Details of this sordid tale can be found in a book excerpt published by the Boston Herald.)

As Weld’s investigation unfolded, lawyers for various potential witnesses and targets would get together for weekly meetings to compare notes, discuss what we believed subpoenaed witnesses were saying to federal agents or to the grand jury, and determine what it all portended for our clients. At one of these meetings, a lawyer with intact ties to the U. S. attorney’s office told the group that he had received informal word that the government viewed our meetings as possibly constituting an “obstruction of justice.” Our goal, after all, appeared to be—and, indeed, was—to prevent prosecutions or, if prosecutions eventuated, then to defeat them.

Thinly-veiled intimations of an investigation and perhaps prosecution of the lawyers were in the air. I became volcanic and suggested that the bearer of these tidings convey back to his source that I, for one, would be happy to test the contours of the federal obstruction of justice statute under the facts at hand.

The threat—if it was in fact a threat, which seemed fairly likely to me—did not go any further. Yet subsequent developments in federal criminal law, some of which I describe in Three Felonies a Day, have made me rethink my youthful bravado.

In Boston, for example, attorney William Cintolo was indicted in 1984 for obstruction in connection with his representation of a number of figures in Boston’s organized crime underground. Members of the defense bar were shocked that Cintolo’s performance of his duties during the grand jury investigation was transmogrified by federal prosecutors into an obstruction, and we got together to file an amicus brief on his behalf. Our effort failed in both the District Court and the Court of Appeals for the First Circuit. Suddenly, defense tactics that we deemed perfectly reasonable were declared a crime, and Cintolo was sentenced to prison and disbarred. (He was quickly re-admitted after he emerged from prison, perhaps a sign that the Supreme Judicial Court of Massachusetts saw through the prosecution in a manner that the First Circuit did not.)

In 2006, another Boston lawyer, Michael Greco, while president of the American Bar Association, was threatened with criminal contempt for the ABA’s arguable failure to implement, in every detail, a consent decree in an anti-trust case. The ABA’s conduct was arguably justified, even correct, but the feds sought to achieve their ends by threatening indictment rather than by seeking a clarification from the court.

And in a 2007 case arising in Greenwich, Connecticut, the feds indicted a respected local lawyer, Philip Russell, for obstruction. During the course of his representation of the venerable Christ Church, he destroyed the hard drive of a church-owned computer onto which the church’s music director had placed images of child pornography. Since child pornography is considered “contraband” in federal law—material that it is not lawful for a private party to possess under any circumstances—Russell did what I and many other lawyers would have done. The alternatives all would likely have resulted in either the Church or lawyer Russell committing an ongoing federal possessory felony. Besides, the computer was not yet the subject of a subpoena, and Russell had no reason to believe that any criminal investigation was underway.

When I undertook to finally write the book after nearly two decades of taking notes, I was struck by the broad sweep of the federal power to indict even the innocent, as well as their lawyers, by resort to vague fraud and obstruction statutes. Since virtually everybody was at risk— physicians, investment bankers, journalists, accountants, lobbyists, performance artists, and public officials, to name a few—I felt that this cause just might initiate a rare coalition across civil society, sweeping from the left to the right of the political spectrum: Liberals, conservatives, libertarians, and all shades in between.

Thus far, I’ve been elated, and sometimes even a bit surprised, at the reception it has drawn across the political spectrum.

I have had only one major prior experience where disparate political factions have come together to fight for liberty. In 1998, Professor Alan Charles Kors and I co-authored our book, The Shadow University: The Betrayal of Liberty on America’s Campuses (The Free Press, now in paperback from HarperPerennial). The book was an exposé of a new regime that began to arise on American college campuses in the mid-1980s (about the same time I noticed the change in culture at the Department of Justice), characterized by campus speech codes and kangaroo courts to “try” students. A year later, as aggrieved students and even professors started to come out of the woodwork, we created The Foundation for Individual Rights in Education (FIRE), a tax-exempt foundation dedicated to the restoration of liberty, fairness, and academic freedom in higher education. While for some years FIRE was accused on the left of being part of some vast right-wing conspiracy to bash liberal academic institutions, administrators and faculty (liberals, after all, do have a far stronger toe-hold in higher education than conservatives), FIRE has in recent years come into its own and has been recognized as the utterly non-partisan civil liberties organization that it always has been.

It is my hope that a similar nonpartisan effort will result from Three Felonies a Day and from all of the other recent reporting and writing being directed to the phenomenon and its victims. The problems described in the book, and expanded upon in these blog posts, certainly cry out for coordinated action. And the seeds sown thus far have been encouraging; recognition that this movement has no ideological allegiances other than the preservation of liberty is a pivotal first step.

Perhaps more daunting, though, is the feds potential response. Reading the obstruction of justice statute again—making a potential felon out of anyone who “corruptly…influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice”—in light of the feds’ recent interpretations and Congress’ emendations, I have an ominous sense that, this time, an indictment would be no idle threat. The horror stories chronicled in Three Felonies a Day (not to mention the manuscript’s out-takes) give me ample cause for concern.

But that’s a risk all Americans engaging in this fight must be willing to take. After all, if you’re going to commit three arguable felonies each day, they might as well be socially and politically worthwhile.