What Goes Around, Comes Around

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For decades, both of America’s major political parties have turned a blind eye to insidious deterioration of constitutional protections of individual rights. In fact, both political parties have enthusiastically embraced the whittling away of such protections in order to score cheap and easy political points. Politicians’ willingness to erode constitutional protections has resulted in a federal criminal justice system that endangers the personal freedom of each of us by permitting politically motivated prosecutions of any of us.

The last two presidential administrations have been persecuted and prosecuted by federal criminal codes that turn the Constitution on its head and result in literal loss of liberty by subjecting people to actual or threatened criminal proceedings and jail time. Republicans up in arms about the recent indictment of Cheney aide I. Lewis Libby, Jr., (and the possible indictment of Karl Rove) would have stronger legs to stand on if they hadn’t participated so eagerly in the criminal investigation, impeachment, and Senate trial of Bill Clinton. Both administrations have found themselves assailed by political opponents eager to stamp them with the label used to express ultimate societal contempt: criminal. What gets lost in the morass of modern federal criminal codes is the precise meaning of "criminal" conduct.

Bill Clinton was impeached and tried on charges of perjury and obstruction of justice. George W. Bush’s administration is being indicted on charges of perjury, obstruction of justice, and making false statements. But what suspicions led to these charges? In the Clinton case, the initial suspected wrongdoing concerned an affair with a White House intern and a sexual harassment lawsuit by Paula Jones. In the Bush Administration it is suspicion that White House aides leaked the name of a CIA agent to the press (i.e., possible violation of the Intelligence Identities Protection Act of 1982 and other federal laws prohibiting disclosure of classified national security information). But the ultimate charges brought against Clinton had nothing to do with an affair or sexual harassment. The ultimate charges brought against Cheney aide Libby have nothing to do with disclosure of the CIA agent’s identity. The only charges that stick are lying and not cooperating during investigation of the original suspected wrongdoing.

The "crimes" of perjury, making false statements, and obstruction of justice are just a few of the numerous offenses that provide federal prosecutors with easy ways to pursue a political agenda — and ruin lives and reputations along the way — without ever having to prove substantive wrongdoing by the targets of their vendettas. A person under investigation for some substantive crime, such as theft or bribery, faces a complex quagmire of pitfalls as he tries to defend himself. One such trap is that prosecutors have at their disposal a host of ancillary crimes with which to charge a suspect, and these ancillary crimes usually have nothing to do with the topic of the original investigation. These ancillary crimes, such as perjury, making false statements, and obstruction of justice, often end up being the only crimes charged against the target of a federal investigation, and these offenses were committed during the course of the investigation itself.

As the Office of Independent Counsel (OIC) and the House of Representatives investigated Bill Clinton’s despicable mistreatment of Paula Jones and his reprehensible affair with Monica Lewinsky, they found no criminal charges to levy against Clinton for this behavior. Although the OIC never criminally indicted Clinton, the House of Representatives successfully charged Clinton with the ancillary offenses of perjury and obstruction of justice. As Special Counsel Fitzgerald now investigates the Bush Administration for leaks to the press, he has been unable to charge any Administration officials or aides with crimes based on alleged leaks. Fitzgerald has, however, succeeded in indicting Libby for the ancillary crimes of perjury, obstruction of justice, and making false statements to FBI agents.

The danger in a system that works this way is that federal investigators can use these ancillary crimes to create crime where none existed, and to imply that a target has committed some underlying substantive crime without having to prove it. Thus, the indictment against Libby proclaims that "Libby was obligated . . . not to disclose classified information" yet goes on to charge Libby not with violating laws prohibiting disclosure of classified information but with lying during the investigation.

The idea behind laws criminalizing perjury, obstruction of justice, and making false statements to federal investigators, is to ensure the integrity of our legal system by giving targets and witnesses incentives to be truthful. However, when prosecutors use broad, vague laws to entrap people into becoming criminals solely on the basis of their words and actions during an investigation, deeply-rooted constitutional rights are eroded. The Fifth Amendment protects a criminal defendant from being forced to testify against himself. The rationale behind this constitutional right is that if the government prosecutors are permitted to require a person to testify against himself, he faces a Cruel Trilemma — the choice between telling the truth under oath and implicating himself, lying under oath and committing perjury, or refusing to testify and being held in contempt of court. Thanks to ancillary crimes like obstruction of justice and making false statements, if you find yourself embroiled (as a witness or a target) in a federal criminal investigation, you now face a new version of the Cruel Trilemma. If you cooperate with federal investigators, everything you say will be used against you to indict and prosecute you. If you refuse to cooperate, you risk indictment and prosecution for ancillary crimes like obstruction of justice. If you speak at all to federal investigators, your words can be twisted into ancillary crimes of perjury or making false statements. It’s a no-win situation against which our Constitution was intended to protect us.

Bill Clinton and George W. Bush legitimately can complain about politicized criminal investigations against them only if they take responsibility for helping to create the very system that victimized them. The Clinton and Bush administrations each allowed and encouraged the apparatus of federal criminal law to be used to target individuals and institutions whose branding with the criminal label would result in political gains. Under the Clinton Administration, federal prosecutors charged former Reagan cabinet member James G. Watt with perjury, obstruction of justice, and making false statements for his alleged involvement with the Housing and Urban Development scandal of the 1980s. A sympathetic federal judge let Watt plead guilty to a misdemeanor (misleading a grand jury) and endure five years of probation rather than jail time. Under the Bush Administration, indictments have been handed out like candy by federal prosecutors eager to get political credit for cracking down on white-collar crime. Perhaps the most egregious abuse of prosecutorial discretion under the Bush Administration was the Martha Stewart prosecution, where initial suspicions of insider trading were never proved but Stewart’s statements during the investigation led to her conviction and jail time for obstruction of justice and making false statements.

When Democrats find "their guys" targeted by political prosecutions founded solely on ancillary crimes, as during the Clinton impeachment, they cry foul. Republicans are reacting similarly to the ancillary crimes charged against Libby. Both sides have reason for frustration, but neither side seems to recognize that these political prosecutions are inevitable in a system that stacks the deck in favor of indictment and prosecution at the expense of protection of constitutional rights. Calls for reform of the regulations governing the power of special prosecutors are band-aid solutions that will only perpetuate a dangerous cycle that leaves each of us vulnerable to political targeting. That cycle can only be broken if Republicans and Democrats become willing to forego the tempting power of ancillary criminal charges as a weapon and restore constitutional protections to those accused of criminal wrongdoing. Until both parties take constitutional rights seriously, what goes around will come around, and all of us will remain at risk of politicized prosecutions.

October 31, 2005

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. Candice E. Jackson [send her mail] is an attorney and graduate of Pepperdine Law School.

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