Tyranny and the Rule of Prosecutors

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by William L. Anderson: Linda
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Several years
ago, James Bovard wrote that large numbers of Americans working
in government positions simply are not subject to obeying laws that
other Americans must follow — or go to prison. Lest anyone doubt
what he says, the
recent recommendation by a special prosecutor investigating misconduct
by the U.S. Department of Justice
in the trial of the late Ted
Stevens should provide ample proof that if one is a government lawyer,
then one is not subject to the law.

The Stevens
trial two years ago in which the then-Alaska U.S. Senator was tried
and convicted on corruption charges turned out to be a farce. While
it is true that Stevens really was the very symbol of "crony
capitalism" and pork-barrel spending, nonetheless what federal
prosecutors did was reprehensible in gaining the conviction.

According to
the report, prosecutors knowingly lied, withheld exculpatory evidence,
and managed to make sure that the Republican would be tried in D.C.
and judged by a jury of Democrats. In other words, the trial was
a farce from the beginning, as often is the case in federal criminal
law.

In his investigation
of the government's conduct (which resulted in the guilty verdict
being thrown out), Special Prosecutor Henry F. Schuelke III wrote
that the very prosecution was "permeated by systematic concealment
of significant exculpatory evidence which would have independently
corroborated his defense and his testimony, and seriously damaged
the testimony and credibility of the government's key witness."
In other words, prosecutors knew exactly what they were doing: breaking
the law.

However, despite
the fact that these government agents knowingly and systematically
defied the law, the special prosecutor has declared that they should
not face any criminal charges because…the trial judge "did
not issue a clear order telling them to properly handle evidence
and witnesses." That is correct: because the judge did not
remind officers of the court that they were to obey the law, and
especially the law as interpreted in the U.S.
Supreme Court's 1963 Brady v. Maryland ruling
, people who already
knew the law and had been trained in the law but deliberately chose
to disobey it will not be punished.

Furthermore,
the courts
have ruled on a number of occasions
that police and prosecutors
cannot be held liable when they are ignorant of the law but they
make wrongful arrests. (That is, arrest someone who police thought
was violating a law, but it turns out the police were wrong about
the law.) In other words, for police and prosecutor, ignorance of
the law IS an excuse, a get-out-of-jail-for-free card.

Contrast this
recommendation with how everyone else in American is treated when
it comes to alleged breaking of the law. It turns out that the standard
line "ignorance of the law is no excuse" only applies
to people who would be most likely not to know the law or even know
a particular law or regulation existed. Furthermore, the courts
have ruled on a number of occasions that the doctrine of mens
rea, once the bedrock of Anglo-American criminal law, no longer
applies, as intent now is irrelevant, at least for people who are
not employed in the "criminal justice" system.

Take the federal
prosecutors in the Stevens case, for example. All of them are law
school graduates, and Brady is taught in every class on criminal
law. Furthermore, they are required to take regular classes throughout
the years, and Brady is a staple of that training.

I will go further.
Each prosecutor in the Stevens case knew the Brady
requirements and knew them better than the typical layperson or
journalist, and I will guarantee that when they were violating Brady
during the evidence-gathering stage and during the trial, they knew
down to their socks they were violating the law and did it anyway.
To make matters worse, they had strong evidence in their possession
that their key witness had serious credibility problems, which is
a nice way to say that the prosecutors knowingly suborned perjury,
which is a felony.

Lest one thinks
I exaggerate, Schuelke's report declared that his investigators
"found evidence of concealment and serious misconduct that
was previously unknown and almost certainly would never have been
revealed u2014 at least to the court and to the public u2014 but for their
exhaustive investigation." In other words, prosecutors did
not just fail to turn over the evidence; they made specific efforts
to hide it, which violates statues against obstruction of
justice, another felony.

Yet, the government
investigator then declares that all should be ignored because the
trial judge did not specifically tell prosecutors that they are
supposed to both know the law and then obey it. That is not a privilege
given to the rest of us.

No, the readers
of this article, according to U.S. courts, are supposed to know
literally every law that Congress and various state legislatures,
not to mention local governments, pass every year, as well as every
other law that ever has been placed on the books anywhere in the
USA. Forget that we are dealing with hundreds of thousands of statutes;
you, dear reader, are supposed to be intimately familiar with the
law.

If you wish
to find a way out of this predicament, however, the solution is
before you: find employment as a police officer, a prosecutor, or
a judge and you can wallow in lawbreaking and legal ignorance to
your heart's content, and the courts will back you.

The
irony is that Schuelke's investigation and report is being heralded
as a triumph of the "ethics" of those who enforce the
laws of this country. You see, we are told, no one is above
the law. Well, almost no one. The people who more than anyone else
should be held to the highest standards of the law are the ones
who really are above it.

Tyranny exists
when certain people are permitted to act in a lawless manner while
forcing others to obey ridiculous and oppressive laws. Lest anyone
believe that such a situation exists only in faraway countries where
soldiers goose-step and dictators have funny moustaches, think again.
What Schuelke has done is not to destroy tyranny, but to expand
it, giving prosecutors literally a free pass to lie and eviscerate
the very laws they claim to enforce, all in the name of "justice."

November
24, 2011

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
. He
also is a consultant with American Economic Services. Visit
his blog.

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