Harvey Silverglate: On Legal Terror

A transcript of the Lew Rockwell Show episode 386 with Harry Silverglate.

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ROCKWELL:  Well, good morning.  This is the Lew Rockwell Show.  And how great to have as our guest this morning, Mr. Harry Silverglate.  Harry — all I can say is, if I were ever in trouble in the Boston area, Harry is the guy I would want to call.  I mean, he’s an extraordinary civil liberties attorney, defender of people targeted by the government, defender of student rights and academic freedom.  And he’s had just a tremendous career in that area.  And as if that weren’t enough, also a career as a writer, a newspaper columnist and author of wonderful books, most recently Three Felonies A Day: How the Feds Target the Innocent.

So, Harvey, you’re making the point that there are so many laws coming down on us, so many edicts, so many — whatever we call them — I hate to call them laws.  I mean, they just seem like announcement of the tyrant — that the average person just going about their life can actually be considered a criminal by the government’s standard.

SILVERGLATE:  Well, the whole point is, it’s not so much the new laws that are the problem because the fact of the matter is the government doesn’t even need new laws because it’s got enough vague and broad criminal laws on the statute books so that they can target any citizen or non-citizen, anybody in the country or, for that matter, outside of the country as a potential criminal without any new laws.  Despite that, of course, they pass hundreds of new laws a year.  But it’s the existence of a body of vague laws that puts everybody in the country at risk. Three Felonies A Day: ... Harvey Silverglate Best Price: $7.30 Buy New $1.99 (as of 11:00 EST - Details)

ROCKWELL:  I can remember F.A. Hayek making the point years ago that this was the path to tyranny, unclear, imprecise laws that could, of course, be used against anyone.

SILVERGLATE:  Exactly.

ROCKWELL:  Tell us, in your own practice, what are the kinds of things — obviously not using people’s names — but what are the sorts of things you’re encountering and how are you fighting this?

SILVERGLATE:  Well, the phenomenon that I’m pinpointing, it’s been around for a while, by the way.  I began to notice this problem, the abuse of these laws.  Some of them have been on the books for decades — mail fraud, wire fraud, securities fraud, for example.  They’ve been on the books for decades.  But I noticed that starting in the mid 1980s, the Feds started abusing these statutes in a way that made me very nervous.  They seemed to be taking potshots at people within civil society who were, for some reason, out of favor.  And then you started to see them turning these laws against state government officials.  Now, I’m not saying that state governments are perfect but, constitutionally, they have a right to be independent of the federal government.  They lost that right starting in the mid 1980s when the Feds can target any governor, any local city councilman, any legislative leader.  And when I say they can do it, they have been doing it.  They have sent three governors of Illinois in a row to prison.  They have sent three speakers of the Massachusetts State House of Representatives to prison.  And if you look closely at the charges, you can see that these state officials did nothing that was outside of the political culture of the state that they led.  And that tells us that this is part of a tyranny over state government by the central federal government that has completely upset the federalist system that the drafters of the Constitution meant us to have.

ROCKWELL:  And, Harvey, isn’t entrapment a big part of these sorts of activities? Against the State: An ... Rockwell Jr., Llewelly... Best Price: $5.02 Buy New $5.52 (as of 11:35 EST - Details)

SILVERGLATE:  Entrapment, that is another technique that they use.  The thing about entrapment is they don’t even need to have a vague law in order to entrap somebody.  They get someone who is in serious trouble, they enlist that person as an uncover agent in exchange for that person not getting indicted.  Again, the vague statutes allow them to turn anybody they want into an informant or an undercover agent.  And then they go and they get a perfectly law-abiding citizen into a conversation which starts to lead towards the violation of one of these vague laws and they get snippets of discussion, and that’s pretty much enough.  You can get an awful lot of people talking and imagining and fantasizing about breaking the law.  And the thing about federal — for example, conspiracy law, it’s so vague and so broad that a mere discussion can constitute an offense.  So there are an awful lot of people sitting in federal prison who simply had the bad luck or bad judgment to get into a discussion with somebody who was the target of the FBI or another federal agency, and they got into a discussion that made it sound like they would be prepared to commit one of these vague crimes.

There is this whole level, mid-level bureaucracy within the federal law enforcement community that just goes out, apparently, in order to justify their own salaries.  I think they are also political reasons why they do this.  But for whatever reason, they go out and they stoke up business, so to speak, and that justifies hiring more of these agents.  And that’s one of the explanations for why the federal law enforcement army — and it is an army — has gotten, every year, bigger and bigger and bigger, and to the point where they’re constantly foraging for things to do.  And what they do is very dangerous for the society.  Far from keeping us safe, they actually make us unsafe.

You know, people think I’m exaggerating when I say this.  I invite them to read Three Felonies a Day.  I invite them to look at the documentation for any one of the many cases I cite.  And by the way, the book was originally 900 pages long.  My publisher said, “You can’t publish a 900-page book.” Suicide Pact: The Radi... Napolitano, Andrew P. Best Price: $0.25 Buy New $2.84 (as of 04:15 EST - Details)

[LAUGHTER]

And I said, “Yeah, but I’ve already cut out dozens of cases.”  He said, “No, you’ve got to cut it down.”  So I did cut it, less than half of the bulk.  But for every case that I have used in my book, I have dozens more I could have used, and I have to say, dozens more that I didn’t even know about, some of which I learned about after the book got published.  So I have understated.  In my book, I have understated the enormous size of the problem.

ROCKWELL:  Isn’t part of what you’re describing the traditional role of the agent provocateur?  They had these in ancient Rome and they had them in Russia, Tsarist Russia, and obviously today in many other societies where the government gets out of hand.  They’re going around, trying to talk other people not just into these vague discussions but to actually commit some kind of act that then can be used as an excuse for more laws and a bigger police state, and to control all of us.

SILVERGLATE:  Well, there is the bureaucracy, of course, derived from secrecy.  So we have no idea how many crimes and plots were actually stirred up, created by agents provocateur of our own government.  We know of some.  I suspect we have seen just the tip of an iceberg.

And one of the great historic ironies is that a lot of these techniques were developed in the course of supposedly fighting Communism, the old Soviet Union.  They adopted a lot of the techniques that Stalin used, he and his secret police chief, Beria.  Beria was reported to have said to Stalin, “Show me the man and I’ll show you the crime.”  In other words, anybody in the old Soviet Union, and for that matter modern-day Russia — anybody in the Soviet Union could be targeted for prosecution by the Stalinist regime because everybody committed a crime every day.  It was just a matter of, you know, finding what they did and squeezing it into the rubric.  You know, one of the famous Stalinist crimes, which continues today, is hooliganism, for example.  Hooliganism.  You can indict somebody for being a hood.  What the devil is a hood? Progressivism: A Prime... James Ostrowski Best Price: $8.99 Buy New $10.95 (as of 08:30 EST - Details)

[LAUGHTER]

Well, it’s whatever the person prosecuting you wants it to be.  And people are going to laugh when I talk about hooliganism but, you know, we have quite a few statutes on our federal law books that are the equivalent of hooliganism — mail fraud, wire fraud, conspiracy to obstruct justice.  And in the age of the war on terror, of course, there are many more hooliganism-type statutes in this country.  And it is a quite frightening situation.  I think it’s incompatible with the existence of liberty and there’s a big battle between the forces of liberty and the forces of authoritarianism or even totalitarianism.

Liberty needs protection in this country and it needs it fast.

ROCKWELL:  Harvey, besides reading your great book, Three Felonies a Day — and I would add reading anything anybody can get their hands on by you — what does somebody do, especially somebody who is concerned about the disappearance of liberty in this country, who wants to opposed it, yet doesn’t want to end up being a victim of these people we’re talking about, how do you proceed?

SILVERGLATE:  Well, first of all, there are some rules that you can follow.  And, in fact, you know, I’m actually writing a book now that I’m hoping to have at my publisher by this spring of next year that answers question that I intentionally didn’t answer in Three Felonies a Day, in part, for lack of space and, in part, because I hadn’t actually thought through the solutions, the protections that you’re asking me about right now.  And I’m in the process of writing a book devoted to answering precisely that question.  There are certain reforms that I think would be helpful.  And together, the reforms might actually be enough to reverse the problem.  But any one of the techniques of defense that I’m going to be writing about should be adopted by citizens.

I’ll give you some idea.  For example, I think the Congress should immediately enact a statute that says that nobody in this country can be convicted of a federal crime unless it is demonstrated beyond the reasonable doubt, The Lone Gladio Sibel D. Edmonds Best Price: $2.36 Buy New $15.49 (as of 03:55 EST - Details) unanimously to a jury, that the person intended to commit a crime and knew what it was that was illegal, that is, understood the statute and intended specifically to violate the statute.  In the law, we call this specific intent.  And in federal law, the doctrine of specific intent — in Latin, they call it “scienter” — you can understand the law, you do understand the law, and you intend to violate it.  That doctrine has gotten eviscerated.  And I think it needs to be reestablished but I don’t think we can count on the federal courts to do it.  And therefore, we need a statute.  Such a statute has, indeed, been introduced in Congress.  It’s been debated for the past two years, and there’s actually some optimism in the civil liberties community and the criminal defense community and the business community, there is some optimism that this statute might be enacted.  And part of the reason, of course, is that more and more congressmen are being indicted.  And when you start to indict congressmen, their eyes open up, especially those that have done nothing more than engage in what ordinary people like us would consider to be ordinary political activity.  And so the enactment of certain curative statutes — quite simple ones, by the way.  You’re not talking here about hundred-page, thousand-page statutes, like the Patriot Act.  You’re talking about one or two-sentence statutes.  And so there is some hope that that can help to cure the situation.

Also, I would eliminate the system by which witnesses testify for the Department of Justice in exchange for which they get favors; they get non-prosecution agreements; instead of going to prison for 50 years, they go to prison for six months.  These kinds of deals — I am a criminal defense lawyer.  If I were to put a witness on the stand who testified favorably for my client because I offered him some reward — a job, for example, or I would help their kid get a job — if I did that, I would be promptly indicted for bribery of a witness and obstruction of justice.  The federal government does it every single day of the week.  And these witnesses get up on the stand, they lie through their teeth, they get people convicted, and then they get their deal.  I would enact a statute — and, again, one of two sentences.  We’re not talking about telephone-book statutes here.  I would enact a statute that simply said that for a prosecutor to give any reward, any inducement to a witness constitutes obstruction of justice and bribery of that witness and subjects that prosecutor to 10 years in prison.  I would do that.  And I would have that enforced by an independent prosecutor because, of course, you can’t expect the Department of Justice to start indicting its own.  So I would have some independence written into that law.  So there are things to be done.

What can an individual do other than fight for these reforms?  Well, I think one thing is act very openly.  If you’re engaging in a deal, make sure that your lawyer knows every aspect of the deal, that the other side knows every Real Dissent: A Libert... Thomas E. Woods Jr. Best Price: $8.48 Buy New $7.93 (as of 03:10 EST - Details) aspect of the deal.  I also think that sometimes it pays to tape-record meetings where you’re discussing something which is at all sensitive or delicate.  The government, of course, records a lot of these things surreptitiously.  The problem is they record them selectively.

The other thing I would recommend — and this is something that every citizen should have.  I think every third grader should be taught this and it should be reiterated in every grade right through college and graduate school — never, ever be interviewed by an FBI agent or any federal agent unless you are making a tape-recording of that interview, never.  And the reason is that the FBI has a written policy — very few people know this, by the way.  It’s one of the great scandals in American law enforcement.  The FBI has a written policy that when they interview you, whether you’re a subject or a suspect or just a plain witness, they have two agents in the room, and there is, in their regulations, a prohibition that they may not tape-record the interview.  Instead of tape-recording it, one of the agents questions you and the other one sits there and takes notes.  The one who takes notes goes back to the office and types up the interview, Q&A, Q&A.  And that interview “script” becomes the official record of the interview.  If you then testify or offer to testify in favor of the defendant, they bring out the so-called 302 form that’s been typed up by the agent.  They say, “Oh, no, no, this is what you said in the interview.  If you testify differently at the trial, we’re going to indict you for either perjury or making a false statement.”  In other words, you are stuck to either parroting the line that the federal agents “claimed” you said at the interview or you subject yourself to prosecution if you testify honestly rather than according to the script that’s been written out for you.  This is one of the great scandals in American law enforcement.

And I routinely, when the Feds want to interview a client of mine, I say, “Sure, come on up to my office.”  We sit down, my client is next to me, the agents — two of them, of course, never one — the agents walk in, they sit down, I pull out my recorder, put it in the middle of the table so that everybody knows it’s being recorded, and they say, “You’ll have to put that away and turn it off because we’re not allowed to have this recorded.”  And I say, “Well, that’s too bad.  This is only going to go forward if I can record it.”  And then they get up and they walk out.  Honest, this is exactly what happens.

How that regulation, year in and year out, is not the subject of federal legislation, where the Congress says the FBI is no longer allowed to have this regulation –and, in fact, I would go further.  I would say Congress should say that all interviews either be recorded or not be used as evidence.  A lot of our states, by the way, do have such a law.  Congress has not had the guts to take on the FBI on this issue. Amazon.com $50 Gift Ca... Best Price: null Buy New $50.00 (as of 11:05 EST - Details)

ROCKWELL:  But you think maybe some people in Congress, because they’re being targeted, may be open to some of these reforms?

SILVERGLATE:  Exactly.  There is a sense of reform in the Congress.  It’s palpable.  You can see more and more of the members of Congress who are talking in these terms.  And as you get more and more members of the legislative branch terrorized by the executive branch, you’re seeing that Congress is beginning to wake up.

And by the way, this doesn’t depend on any particular president being in the White House.  It doesn’t depend on any attorney general.  The Democratic presidents are as bad as the Republican presidents.  The attorney general under George Bush is as bad as the attorney general under Barack Obama.  The fact is this country is largely controlled by — like a sort of use of legal terror by a mid-level bureaucracy that is there when a president starts the term and is still there when the president then finishes the term, this mid-level bureaucracy.  And in this sense also, it’s very much like the old Soviet Union and modern-day China where the bureaucracies really have enormous power.  And the chief executive, the president is actually a little bit afraid of the bureaucracies because they can undermine anything that the president tries to do.

So it really does require an uprising on the part of the Congress.  And that’s beginning to happen.  It would also be very useful if the news media could see through some of these prosecutions rather than play them on the front pages, as if the local U.S. attorney is a hero rather than a traitor to the Constitution.

ROCKWELL:  Harvey Silverglate, thanks so much for coming on the show today.  Thanks for the extraordinary work you do.  You’re one of our great champions of liberty.  I want to highly recommend your book, Three Felonies a Day, How the Feds Target the Innocent.  We’ll be looking forward to your next book, to your newspaper columns.  And all I can say is keep it up.

SILVERGLATE:  Well, thank you very much.  And I hope I haven’t depressed your listeners too much —

[LAUGHTER]

— giving them the true story of what’s going on.

ROCKWELL:  I know the truth is all important, so thank you, Harvey.

SILVERGLATE:  Thank you.

ROCKWELL:  Bye-bye.

SILVERGLATE:  Bye-bye.

ROCKWELL:  Well, thanks so much for listening to the Lew Rockwell Show today. Take a look at all the podcasts. There have been hundreds of them. There’s a link on the LRC front page. Thank you.

Podcast date, September 10, 2013

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