Tyranny and the Rule of Prosecutors

Recently by William L. Anderson: Linda Kelly's Inferno

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.

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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.

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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.

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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