The Volokh Conspiracy

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.

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.

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

“As a result of a burgeoning number of fraud investigations and prosecutions, I have become convinced that a concerted interagency effort is needed. We want to bring this additional firepower to bear on behalf of investors who might otherwise lose their confidence in the integrity of these markets.”

The Financial Fraud Enforcement Task Force, an interagency effort to investigate and prosecute those responsible for the current economic crisis, was established via executive order on November 17. But the above announcement was made twenty years prior. On January 31, 1989, then-Attorney General Dick Thornburgh touted the creation of a coordinated task force to bring to heel those responsible for the Wall Street scandals du jour.

Indeed, the present response to Wall Street failures seems straight out of a time-tested Washington playbook: Ratchet up enforcement, throw the miscreants in prison, and—voila—the public’s confidence in their markets and in their government is restored.

Arrest rates for “white collar” fraud have surged in the wake of recent well-publicized financial scandals, according to data generated (PDF) from the FBI’s Uniform Crime Reports. Over a two-year period after the savings-and-loan scandal and the creation of the task force described above (1990-1992), the number of fraud arrests increased 53%; over the same period following the dot-com bust (2000-2002), arrests jumped 26%. Now, with regulatory agencies expanding their probes of alleged insider-trading violations and the Justice Department promising more convictions, a raft of indictments appears inevitable. But do these enforcement efforts reflect true criminal violations? Putting aside the long-term efficacy of such periodic orgies of prosecution, there remains the nagging question of whether the defendants are guilty of any crime.

One’s unease lies not in the seeming futility of enforcement per se, but in the very nature of the laws that regulate financial fraud. For one thing, the sheer volume of regulatory codes makes adherence to legal standards a high hurdle. When Congress was considering the Fraud Enforcement and Recovery Act earlier this year, the National Association of Criminal Defense Lawyers and the Federalist Society—organizations on opposite ends of the ideological spectrum but joined at the hip in battling unfair and excessive federal prosecutions—authored a joint letter (PDF) to the Senate Judiciary Committee, pointing out that virtually all criminal provisions then under consideration were already encompassed within the existing federal criminal code. Congress ignored this nonpartisan and eminently sensible plea, passed the legislation, and added to the Justice Department’s armamentarium of overlapping and vague criminal statutes.

More pernicious than the volume of federal laws, however, is their imprecise wording. Prosecutors are given too much latitude in pursuing perceived wrongdoers whose conduct isn’t explicitly proscribed by statutory language. In a society of laws, fair notice as to what conduct might land a citizen in prison is a vital component of due process.

This should not be confused with a plea for de-regulation, which is largely a political and not a legal debate. Nor is it a plea for leniency for those who knowingly violate clear rules, even if those rules are unwise. But providing average citizens with clarity of their legal obligations is a vital civil liberties matter having nothing to do with whether one believes in more regulation or less. Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice, spells out the need for specifically defined legal boundaries in his timely treatise on modern criminal law, In the Name of Justice (to which I contributed a chapter):

There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with examples of oppressive governments that persecuted unpopular groups and innocent individuals by keeping the law’s requirements from the people.

Galleon Group hedge fund founder Raj Rajaratnam, indicted (PDF) yesterday on 11 counts of securities fraud and conspiracy, would likely fit into this “unpopular” category, especially as his unflattering, hand-cuffed image from an October 16 early-morning “perp walk” continues to grace broadsheets and blogs. Rajaratnam is accused of having foraged around for—and obtained—purportedly non-public information from corporate insiders. But serious questions exist as to the line between legitimate research and illegal trading, as well as the extent to which insider trading laws even cover such outsiders who seek inside information. (Unlike Rajaratnam, others involved in the case might be insiders, and their legal obligations would be considerably clearer.)

The law criminalizing insider trading, enacted with the Securities and Exchange Act of 1934, prohibits “any person, directly or indirectly,” to “use or employ, in connection with the purchase or sale of any security…any manipulative or deceptive device.” Lawmakers assumed the SEC, which the Act created, would issue regulations to flesh out the vague language and effectuate the statute’s intent. But the SEC’s regulations tend to mimic, rather than clarify, the statute’s oracular wording, and neither the SEC nor Congress has been particularly eager to spell out precisely the nature of “securities fraud” or “insider trading.”

In the 1980s, both Congress and the SEC had an opportunity to provide clarity to securities fraud law. The Insider Trading Sanctions Act of 1984 (“ITSA”) substantially increased the penalties for insider trading. The Insider Trading and Securities Fraud Enforcement Act of 1988 (“ITSFEA”) further upped the ante by providing sanctions against those who “recklessly…failed to take appropriate steps to prevent” violations by others. Remarkably, despite near-unanimous support in both chambers of Congress, neither statute did anything to define precisely what insider trading was and what kinds of “outsiders” were covered.

During the ITSFEA hearings, Chairman John Dingell of the House Committee on Energy and Commerce claimed that any definition of insider trading would provide criminals with a “roadmap for fraud.” (It appeared not to occur to him that legal clarity is actually meant to provide a roadmap for lawful conduct.) Dingell explained that his committee “did not believe that the lack of consensus over the proper delineation of an insider trading definition should impede progress on the needed enforcement reforms encompassed within this legislation.”

It is reasonable to ask the question—especially in light of the early morning arrests, perp walks, sensational trials, and gargantuan prison sentences—whether the current system for dealing with “insider trading” by corporate outsiders who pursue as much information as their research skills and personal contacts allow comports with basic notions of due process of law.

Similar due process questions arose in the case of two former Bear Stearns hedge fund managers. Prosecutors indicted (PDF) Ralph Cioffi and Matthew Tannin on securities fraud charges for, in effect, presenting an optimistic picture to investors while aware of the possibility of collapse. When Cioffi and Tannin were faced with questions as the subprime mortgage market—in which their funds were heavily invested—looked ominously shaky, they doubtless agreed with the prevailing wisdom: Sure, a total collapse could happen, but the markets could instead stabilize and suddenly present managers with a huge buying opportunity. The situation, after all, was unprecedented in modern times.

Were a fund manager to respond to questions by publicly indulging his pessimistic side— “I think our liquidity has dried up and we may be on the verge of collapse”—he surely would have caused precisely that which he was hoping to avoid: a fatal “run on the bank.” Such a statement could rightly be seen as professional malpractice, subjecting the manager to endless civil litigation by disgruntled investors who doubtless could demonstrate that, at the time, an optimistic outcome was still a distinct possibility and that the manager’s predictions of doom were a reckless self-fulfilling prophecy.

The case was yet another example of the Justice Department targeting “professionals who have engaged in seemingly routine requirements of their job,” I wrote in the Wall Street Journal when the criminal investigation commenced in April 2008. Fortunately, jurors recognized the Catch-22 in which the Bear managers found themselves and acquitted Cioffi and Tannin on November 10.

In light of the legacy of the federal government responding to market downturns with task forces and ramped up prosecutions and perp walks, former Attorney General Thornburgh’s testimony (PDF) at a July 2009 Congressional hearing on the phenomenon of “overcriminalization” was a gratifying departure from remarks past. Said Thornburgh:

Make no mistake, when individuals commit crimes they should be held responsible and punished accordingly. The line has become blurred, however, on what conduct constitutes a crime, particularly in corporate criminal cases, and this line needs to be redrawn and reclarified.

Amen!

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

Sami Omar al-Hussayen was a doctoral candidate at the University of Idaho when he was arrested in February 2003. Federal prosecutors alleged that al-Hussayen, a Saudi citizen studying computer science in the United States, provided “material support” and rendered “expert advice or assistance” to terrorists. News reports, on the word of anonymous “federal criminal justice” sources, linked him to Osama bin Laden.

What was his crime? Al-Hussayen used his computer skills to run a number of websites for a Muslim charity dedicated to traditional religious teaching. But if a web-surfer burrowed into links from al-Hussayen’s site, he or she would eventually come across links containing violent anti-American messages. This, prosecutors charged (PDF), was how al-Hussayen aided global terrorism.

District Judge Edward J. Lodge, for one, played the case right down the middle. In his jury instructions, Lodge explained to twelve stalwart Idahoans that the First Amendment protects advocacy, even advocacy to break the law, “unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg v. Ohio, 395 U.S. 444, 1969) Of course, it was doubtful that al-Hussayen was even advocating lawlessness, much less violence, but for the sake of argument, let’s assume that there was such a subtext to his website maintenance. Even then, the prosecution was highly dubious.

With Judge Lodge’s clear line separating lawful political speech from unlawful incitement to imminent violence, the jury took little time in acquitting the grad student of the terrorism-related charges. Liberty, which seemed to matter less and less at Main Justice in Washington, remained alive and well in Idaho. (This was due not only to a law-abiding judge presiding over the trial, but also to the fact that the defendant was able to hire and pay competent defense counsel.)

Nonetheless, this case, reportedly the first prosecution brought under the USA Patriot Act’s expanded material support provision, did little to clarify the “expert advice or assistance” aspect of the federal terrorism laws. There are, in fact, three separate federal statutes that criminalize such material support, and Georgetown Law Professor David Cole provides an interesting analysis of these overlapping provisions, here. For present purposes, material support will refer to 18 U.S.C. 2339B.

Yet the mere fact that there are three separate provisions for essentially the same violation—and all are characterized by vague and dangerously subjective wording—illustrates the general opacity of the federal criminal code. (And, rest assured, incitement to violence could likely be squeezed into yet another statute by a creative federal prosecutor). With similarly vague statutes criminalizing a wide array of seemingly benign activity, the average citizen, even without touching the apparently volatile arena of Muslim charities, can commit several arguable felonies in the course of a day. Thus, the thesis and title of my book, Three Felonies a Day: How the Feds Target the Innocent.  (I provided an introduction to the topic on Monday.)

To be sure, there are countless federal crimes that an average citizen can inadvertently violate. But I’d like to focus today on the vague laws governing terrorism and terrorist organizations. These laws, and those prosecuted under them, provide a timely window into how loosely-worded statutes enable the government to prosecute virtually anyone.

Consider, first, the semantic power of “terrorism.”

The Animal Enterprise Protection Act, passed by Congress in 1992, outlawed the “physical disruption” of an animal farm or testing facility. But with animal-rights activists continually ramping up their protests, medical facilities and some researchers looked to toughen criminal sanctions. In November 2006, Congress responded with the Animal Enterprise Terrorism Act, which expanded the scope of criminal sanctions for any activist who “intentionally damages or causes the loss of any real or personal property…used by an animal enterprise.”

How does one define “real or personal property?” Is it limited to monetary losses, or can this include the loss of future profits? The statutory language is unclear, and case law indicates that loss of profits and business goodwill can be considered property damage (See, e.g., Radiation Sterilizers v. United States, E.D. Wash., 1994).

It’s an important distinction for animal-rights activists; after all, threatening future profit is arguably the point of lawful protest (expose alleged wrongdoing and, in turn, encourage a boycott by others). Nonetheless, the law threatens to impede such political expression, not only through actual prosecution, but also through the “chilling effect” of those who severely restrain themselves in order to avoid a possible federal criminal indictment—because they don’t know their legal obligations until it’s too late.

A similar legal ambiguity led to the court challenge of the aforesaid “material support” language. In a case that will be argued before the Supreme Court this coming term (Holder v. Humanitarian Law Project), six groups and two individuals are seeking clarity on whether they are permitted to assist in the nonviolent, legal activities of groups classified by the U.S. government as terrorist.

The Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam are considered terrorist organizations by the U.S. government, although plaintiffs insist that both groups engage in a broad range of lawful activity. Due to the vague terminology in Patriot Act provisions (“service,” “training,” or “expert advice or assistance,” to name a few), plaintiffs claim that even innocuous conduct such as “teach[ing] such an organization human rights advocacy or English” could be considered material support. With indictments like al-Hussayen’s showing the elasticity of “expert advice” in the government’s lexicon, there’s little wonder that these groups are seeking guidance.

The intensity of the friend-of-the-court (amicus) briefs is an indication, perhaps, of the far-reaching fear instilled by such statutory language. Wrote the ACLU (PDF):

Amici, like plaintiffs, are left hopelessly guessing – at the risk of grave penalty – whether their advocacy for peace or human rights, their engagement in or facilitation of peace-making dialogue, or the expressive components of their humanitarian aid work crosses the line from constitutionally protected to criminally proscribed.

The bi-partisan nature of the problem—demonstrated by the fact that what is now the “Holder” case began as Humanitarian Law Project v. Reno and then was re-named through every administration to the present day—explains the need for a non-partisan response. Starting with Clinton Attorney General Janet Reno, this case has been litigated through the Ashcroft/Gonzales/Mukasey years of the Bush administration, and it continues with current AG Eric Holder. Plus ça change, as the French say, plus c’est la même chose.

When these lines are left vague, the feds are given strong tools to target extremists. But they’re also free to target any other victim of their choosing, which they seem to do with disturbing regularity. And while the current political climate has put the issue of laws related to terrorism in the spotlight, similarly vague statutes exist throughout the federal criminal code, exposing all of civil society. It’s time to recognize that the bell tolls for us all.

Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”

If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.

Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.

Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)

“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial Patriot Act provisions—to name a few—have turned honest citizens into federal defendants and even convicted felons.

What about “due process of law” guarantees provided under the Fifth Amendment and its ancillary “void for vagueness” doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests “near” a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts.

But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence.

This dangerous trend is exacerbated by the “win at all costs” mentality of the Justice Department. Colleagues are turned into stool pigeons as prosecutors offer deals for testimony that often bears little resemblance to the truth. (As my colleague Alan Dershowitz colorfully but all-too-accurately puts it, “prosecutors can pressure witnesses not only to sing, but also to compose.”)

Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.

That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics. When these cases end in plea agreements, scant scrutiny is applied to the sometimes questionable prosecutorial tactics—tactics, incidentally, that are rarely understood, much less questioned, by a largely pliant news media that feeds on sensational prosecution claims.

It’s important to keep in mind, too, that this problem is not the creation of any one political party. It’s a truly bipartisan beast, expanding rapidly since the mid-1980s. That’s when I, a criminal defense and civil liberties trial lawyer since 1967, noticed that more and more of my clients in federal criminal cases were being prosecuted for actions that neither I nor they instinctively viewed as criminal. In a few instances, their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution.

To my surprise (and chagrin), this trend has only increased with each successive changing of the Washington political guard. From Reagan to Obama, Congress has continued to pass indecipherable legislation, and federal prosecutors have continued to twist statutes in order to criminalize a broad array of conduct—including, quite often, conduct that is assuredly not in violation of state law but which suddenly becomes federal fraud.

The bipartisan nature of this problem is at once disheartening and encouraging. Disheartening, in a sense, because it cannot be remedied by voting one party out of power. It seems to be rooted in the culture at Main Justice, a culture that persists from one attorney general to the next.

In another sense, though, the nonpartisan nature holds promise. Recognition of this problem has brought together seemingly disparate groups to collectively seek change.  Adam Liptak, Supreme Court reporter for The New York Times, picked up on this in his November 23 column, “Right and Left Join Forces on Criminal Justice.”

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

Liptak noted, later in the column, that an official from the conservative Heritage Foundation offered him a copy of Three Felonies a Day. (In that column, Liptak referred to me as a “left-wing civil liberties lawyer,” and that was somewhat accurate, although I see myself as a liberal with strong libertarian leanings. My co-founding The Foundation for Individual Rights in Education (FIRE) demonstrates, for example, my near-absolutist support for free speech regardless of politics or point-of-view.)

The “honest services” hearings and the emerging consensus on reforming these criminal justice issues were also highlighted by Tony Mauro of the National Law Journal. In his December 7th column, Mauro pointed out that former Attorney General Edwin Meese III—whom I criticized vehemently when he headed the Reagan Justice Department—welcomed me at a recent speaking event. We now see eye-to-eye on “overcriminalization” of the law, which covers both the expanded reach of federal criminal law and the vagueness of the statutes.

Over the coming week, I will explore the extent of the threat to liberty represented by vague federal laws and the reasons behind this nonpartisan unification against them.