Starr Teachers

Think independent counsels use dirty tricks? Check out the Justice Department's regular prosecutors.

Harvey Silverglate from the May 1999 issue

(Page 3 of 4)

If, as happened in Starr's investigation of Clinton, no prosecutable case can be made against the target for pre-investigation crimes, or for obstructing the investigation of those crimes, there is always another avenue: the perjury trap. An intense investigation of virtually anyone will usually find something that the target will lie about to protect either a loved one or himself. Starr knew that, as with many other people, the thing the president was most likely to lie about was his sex life. Having heard the famous telephone tape made by Clinton paramour Gennifer Flowers, the independent counsel knew that the president was a flawed human being with a propensity to lie (and to advise others to lie) about sex.

In the nether world of prosecutorial logic, a federal investigation of the Monica Lewinsky matter was justified by the gossamer connection between the president's alleged efforts to cover up his complicity in the Whitewater bank fraud--a charge that has never been made, much less proven--and his easier-to-prove efforts to conceal his sex life from Paula Jones's lawyers. All that remained was for the prosecutors to call the president before a federal grand jury, and the jaws of the perjury trap would slam shut. The only possible escape was for the president to rely on a tortured legal parsing of sexual relations to protest his innocence of perjury during his deposition in the Jones suit and, in the face of the semen-stained dress, to admit his sexual involvement with Lewinsky. Whether his attempted escape from the perjury trap set for him by Starr constituted a high crime or misdemeanor justifying his removal from office became the subject of his impeachment and his trial in the Senate.

The perjury trap was used in a somewhat different fashion by federal prosecutors during their investigation of former Boston Mayor Kevin White. In Boston, as in many cities, real estate developers often fall prey to city inspectors who extort money through their power to delay or deny needed permits. Paying small cash bribes to city officials is usually not a violation of federal law. But William Weld's prosecutors hoped that if they entrapped a real estate developer into paying illegal tribute to one of these predatory inspectors, he might lie about it when questioned by the federal grand jury. At that point, they figured, they'd have enough leverage over the developer to force him to divulge evidence about graft involving the mayor.

The feds easily caught a minnow: a building inspector extorting graft from a small-scale developer. Threatened with prison, he quickly agreed to wear a wire for the feds while shaking down a large-scale developer who needed permits for a housing project. The crooked inspector readily issued a permit to install a foundation for the project but then refused to allow the developer's construction crews, which were standing idle at the building site, to erect anything on the foundation. The developer, who later became our client, instantly understood what was wanted; he paid $1,000 to the inspector, who recorded the event on an FBI-supplied tape recorder.

Weeks later, the federal prosecutors called the developer before the grand jury. Fearing that he'd never get anything built in Boston if he told the truth, the developer lied when asked whether he'd ever paid a bribe to a city official. Though he pleaded guilty in federal court to a related charge, the developer never provided the sort of testimony that the perjury trap was designed to elicit, because he had nothing incriminating to say about the mayor.

Since the law books today are filled with an even greater assortment of crimes than they were when Robert Jackson was attorney general, a federal prosecutor has an almost certain chance, not just a "fair" one, of being able to pin some violation of law on virtually any citizen. In Jackson's era, one spoke of the feds "throwing the book" at their target. Nowadays, targets can be investigated for violating any one of thousands of laws and regulations filling an entire library of fine print and undefined arcana. This body of law is so vast and scattered that, according to a February report from an American Bar Association panel chaired by former Attorney General Edwin Meese III, "there's no conveniently accessible, complete list of Federal crimes."

Federal laws now criminalize many activities that the average person would not necessarily view as immoral or anti-social, much less felonious. This is true in such fields as antitrust, campaign finance, currency transactions, customs and export laws, environmental protection, firearms, Medicare and Medicaid, patents, copyright and trademark infringement, securities, and taxation, to name just a few. For example, a 1993 case in the 1st Circuit involved a New Hampshire man in the midst of an acrimonious divorce who made small cash deposits in his business partner's bank account to make it more difficult for his wife's lawyer to locate his assets. He and his partner were prosecuted for violating the federal law against money laundering, even though that statute is aimed at transactions designed either to conceal the criminal origin of money or to evade taxes. The government conceded that the man had earned the money legitimately and had reported the income on his tax returns. Yet he and his partner were convicted for money laundering, verdicts that were thrown out on appeal.

The pervasive web of federal laws governing many areas of private and public activity provides federal prosecutors with a rich supply of often vague words and phrases to bend and blend and string together in ever more creative ways to establish that a targeted individual has committed a felony. People whose activities may be covered by these complex laws often either do not know about them or do not understand them to prohibit activities deemed unlawful by the government. The target will sometimes find himself under investigation or prosecuted for doing something that he had no reason to believe was illegal. Indeed, by redefining long-accepted meanings of words and phrases used in federal laws, prosecutors are able to charge the target with violating crimes that were entirely unknown at the time he acted.

Independent Counsel Donald Smaltz's case against former Agriculture Secretary Mike Espy illustrated this approach. Smaltz was appointed to investigate whether Espy's acceptance of gifts and travel from companies whose businesses his department regulated constituted not just violations of ethical rules (Espy was forced to resign) but felonies. The law that most nearly fit the facts is the one that prohibits federal officials from "accepting anything of value personally for or because of any official act performed or to be performed by such official or person." (Emphasis added.)

Smaltz spent years and millions of taxpayers' dollars trying to generate evidence that the blandishments Espy accepted were linked to "any official act" but came up empty. One might think that, if the facts did not fit the definition of the crime, Smaltz would have declined to prosecute. Instead, he aped Justice Department tactics, prosecuting Espy by retroactively redefining the crime to fit the facts.

Smaltz took the position that the statute should apply to gifts motivated by the receiving official's status or position, regardless of whether there was any intent to affect or reward "any official act." Fortunately for Espy, this theory was first tested in Smaltz's prosecution of Sun-Diamond Growers of California for its gifts to him. Sun-Diamond's conviction was thrown out on appeal because, at Smaltz's urging, the judge had instructed the jury that no link had to be proven between the gifts and any official act by Espy. The U.S. Court of Appeals for the District of Columbia Circuit concluded that Smaltz was prosecuting Sun-Diamond and Espy for a nonexistent crime. Smaltz went ahead with the Espy trial anyway, and Espy was acquitted by the jury.

You need not be a Cabinet official to be prosecuted by the Justice Department for committing an offense invented after the fact. We represent two businessmen in two different industries who have suffered this fate.

One of these men is the principal executive and owner of Fiber Materials Inc. (FMI), which sells equipment used to manufacture heat-resistant carbon-carbon. The export of such equipment is subject to Commerce Department regulation because sometimes it is "specially designed" to produce weapons-grade carbon-carbon, a substance used in missile warheads and rocket nozzles. Alternatively, the equipment may be "dual use," capable of producing either weapons-grade carbon-carbon or less rarefied products used to make brake pads for aircraft and other nonmilitary products. Since the beginning of the Cold War, arms control regulations have banned the export of "specially designed" equipment without a shipment-specific license but have permitted the export of "dual use" equipment, subject to a less restrictive Commerce Department general destination license.

In 1988, FMI shipped to an Indian defense research institute equipment that included a control panel everyone agreed was dual use. In retrospect, the Commerce Department worried that the control panel might contribute to India's arms race with Pakistan and China. Rather than change the regulations to embargo future shipments of similar dual use equipment, the government prosecuted FMI based on a new interpretation of the law. The prosecutors convinced the trial judge to instruct the jury that, despite years of the Commerce Department's consistent and contrary usage, the phrase specially designed referred to dual use equipment, thus assuring convictions for failure to obtain a special export license. A sentence still has not been imposed four years after the trial, and the verdict remains under legal attack based on a steady stream of evidence that the government changed the meaning of specially designed only after the shipment occurred, for the sole purpose of prosecuting FMI.

Our other direct experience with retroactive criminalization involves safe and effective, the keystone phrase of Food and Drug Administration regulations. The FDA approves drugs and medical devices for sale and distribution only if they are "safe and effective under the conditions of use and warnings against unsafe use in the approved labeling." Hence the FDA requires manufacturers of drugs and medical devices to tell their customers, whether they are health care providers or patients, to "use only as directed."