Dispatch From CPAC: Overzealous Prosecutors Must Be Stopped

Prosecutors rewarded while wrongfully convicted never recover—even if proven innocent

The panel discussion at CPAC on the incomparable power of prosecutors in our criminal justice system.
The panel discussion at CPAC on the incomparable power of prosecutors in our criminal justice system. The author is on the left. Youtube/CPAC 2017

We’ve seen it happen time and time again, and the list of innocent people affected seems endless. The national registry of exonerations lists almost 2,000 people who have been cleared of crimes after their convictions. In addition, political prosecutions have shifted the balance of power in the Senate, ended presidential campaigns, destroyed businesses, truncated promising careers, and shattered families. Sen. Ted Stevens, Gov. Rick Perry, Gov. Bob McDonnell, Tom Delay, Arthur Andersen LLP and its 85,000 jobs, four Merrill Lynch executives in the Enron Barge case, Friedman’s Jewelers CFO Brad Stinn, and America’s former “Top Cop” New York City Police Commissioner Bernard Kerik—these and more like them have been targeted and wrongfully convicted by overzealous, unethical or even malicious federal prosecutors.

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This past weekend, fifteen thousand people gathered for the Conservative Political Action Conference (CPAC) in National Harbor, MD. The American Conservative Union and its Foundation for Criminal Justice Reform aim to stop the abuse of power by prosecutors and work for criminal justice reform in all areas. Immediately following the speech by President Donald Trump, I participated in a panel discussion led by Pat Nolan, director of the Center for Criminal Justice Reform for the American Conservative Union Foundation; David Keene, editor of the Washington Times and former head of the ACU and NRA; and Kevin Ring, president of Families Against Mandatory Minimums. Our focus was the incomparable power of the prosecutor in our criminal justice system and the absence of any remedy for abuses of that power.

For over a decade, unscrupulous prosecutors under presidents from both political parties have used their omnipotence to pin crimes on conservatives to remove them from their respective spheres of influence. This outrage first came to my attention upon the prosecution of Arthur Andersen LLP, the venerable accounting firm of 89 years that had served as Enron’s accountants. Although only a few of its partners and accountants worked on Enron matters, federal prosecutors destroyed the entire firm and its 85,000 jobs. Years later, the Supreme Court issued a rare unanimous decision that reversed the conviction. Justice Rehnquist wrote for the Court that it was “shocking how little criminal intent the jury instructions required.”

Prosecutors Matthew Friedrich, Andrew Weissmann, and Leslie Caldwell prosecuted and convicted Andersen for conduct that was not criminal. Using the threat of a lifetime in prison, the prosecutors forced Andersen partner David Duncan into pleading guilty. Duncan was allowed to withdraw his plea after the Supreme Court decision, since his conduct was not criminal. At least four federal judges had a role in this wrongful conviction.

These prosecutors next turned their sights to Merrill Lynch executives. As I detailed in my book License to Lie, Friedrich, Weissmann, and Kathryn Ruemmler convicted four Merrill executives on charges that failed to state a federal offense. As the federal judge sent them to prison, he acknowledged they “were just doing their jobs.” These four executives spent a year in prison before the Fifth Circuit held that the indictment was “flawed” and ordered their release.

The unethical, illegal, and outrageous conduct of these prosecutors buoyed their careers. Friedrich rocketed to the top of the Bush Justice Department. Later, President Obama promoted Weissmann to deputy director of the FBI, Leslie Caldwell to assistant attorney general for the criminal division of the Department of Justice, and Kathryn Ruemmler became his longest serving White House counsel.

Friedrich, as acting attorney assistant attorney general for the criminal division of the Department of Justice under President Bush, immediately pushed the indictment of Sen. Ted Stevens—the most prominent figure on our list who was indicted. We learned years later that Friedrich micromanaged the Stevens’ prosecution.

Stevens, the beloved senator from Alaska, held the 60th seat targeted by the Democratic Party. Though his trial was permeated with allegations and instances of prosecutorial misconduct, the jury returned a guilty verdict eight days before the election. Stevens lost the election by a few thousand votes, but this allowed the Democrats to shift the balance of power in the Senate to facilitate the passing of Obamacare. Ultimately, an FBI agent filed a whistleblower complaint, Judge Emmet G. Sullivan held the prosecutors in contempt, and new Attorney General Eric Holder was forced to dismiss the Stevens’ indictment due to the fact that the prosecutors intentionally hid evidence that proved Stevens’ innocence.

More recently, federal prosecutors went after rising Republican star, Gov. Robert McDonnell and his wife, claiming they committed federal crimes by accepting gifts and loans, even though their conduct was lawful under Virginia law. The indictment and prosecution destroyed McDonnell’s presidential ambitions. The McDonnells were convicted by a jury, but like Arthur Andersen LLP and the Merrill Lynch defendants, their convictions were reversed by a unanimous Supreme Court decision because they were convicted of conduct that was lawful.

As David Keene reminded the CPAC audience, in Berger v. United States 295 U.S. 78, 88 (1935), the Supreme Court made plain that the federal prosecutor has a special role in our system of justice: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done… He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.”

Our message to the audience at CPAC was clear: the “foul blows” struck by state and federal prosecutors must end now. When an innocent person is convicted, everyone loses. The guilty person is still free to commit more crimes, an innocent life is unjustly destroyed, and the legal process is a waste of precious resources.

There is no remedy for a wrongful prosecution. Prosecutions and imprisonment cost millions of dollars, and a concocted crime, over-reaching prosecution, and the conviction of an innocent person serve no one. Innocence Project’s work speaks to the ravages of wrongful convictions.

Conservatives are uniting to spearhead the effort for criminal justice reform in many areas—from supporting Sen. Orrin Hatch’s efforts to include a baseline element of criminal intent for most offenses, to abolishing absolute immunity for prosecutors and imposing penalties for intentional misconduct. As Judge Alex Kozinski addressed at length in his preface to the Georgetown Law Journal, there are many flaws in our criminal justice system. Conservatives also recognize the need to reform America’s prison system, sentencing procedures, and America’s overall approach to crime. With the increasing proliferation of regulations and their incorporation into criminal statutes by overly aggressive prosecutors, everyone is at risk of being deemed a criminal. A prosecutor can find something to pin on anyone, but that is not their job.

The goal is to be right on crime—not soft on it.

Sidney Powell worked in the Department of Justice for 10 years, in three federal districts under nine United States Attorneys from both political parties. She was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice—a legal thriller that tells the inside story of high-profile prosecutions.

Dispatch From CPAC: Overzealous Prosecutors Must Be Stopped