One of the recurrent refrains in Plato’s dialogues appears in his Gorgias, where Socrates says a person should submit to anything—prison, pain, exile, even death—in order to “be freed from the greatest of evils, from injustice.” The Preamble to the Constitution of the United States calls us to “form a more perfect union” and “establish justice.” On the west pediment of the Supreme Court building we read: “EQUAL JUSTICE UNDER LAW.” Dedicated to such precepts, Sidney Powell served as a prosecutor within the Department of Justice for a decade, confident that hers was a righteousness endeavor. Then she established a private practice and in time was asked to join a defense team endeavoring to help a falsely accused and convicted man (Jim Brown) caught up in the broadcast net thrown by federal prosecutors determined to punish everyone loosely associated with the Enron scandal. In a related incident, says Alex Kozinski, Chief Judge for the Ninth Circuit Court of appeals, when the “venerable accounting firm of Arthur Anderson [considered the “gold standard” of accounting firms and employed by Enron during its glory days] was destroyed by a prosecutorial decision to charge the firm, not merely individual partners, with criminal conduct. While the Supreme eventually held that the ‘crime’ of which Anderson was convicted was no crime at all—in other words, that Anderson had acted lawfully—the exoneration came too late to save the business or the 85,000 job it provided in its various offices world-wide” (#57).
As was evident in the Anderson case, federal prosecutors too often pursue personal ambitions—e.g. advancing in the department or burnishing their credentials for a judicial appointment or garnering glowing press citations—rather than doing what’s right. Such disregard for justice was demonstrably evident in the case against Ted Stevens, a Republican senator from Alaska. Following Attorney General Eric Holder’s directives, Stevens was accused of “failing to report alleged gifts on senate forms.” Federal prosecutors, by violating ethical rules, ignoring court orders, concealing evidence and lying about it in court, triumphed in a celebrated trial. In time, however, their misconduct was exposed and his conviction vacated. Federal District Judge Emmet Sullivan delivered a stinging rebuke to the prosecution, declaring: “‘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’” (#191). Senator Stevens had been maliciously attacked by self-serving prosecutors. However, since the lengthy federal investigation and trial began while Stephens was running for reelection, he lost his seat, expended enormous sums of money defending himself, and saw his reputation smeared.
To Sidney Powell’s dismay, such cases are hardly rare! She found the attorneys at the top of the Department of Justice too little concerned with justice! Illustrating this was Andrew Weissman, the main man driving the Arthur Anderson indictment (and currently part of Robert Mueller’s the team of prosecutors probing Donald Trump’s Russia ties), who “had developed special tactics in these prosecutions where he was convinced the end justified the means” (#35). To expose their misconduct she wrote Licensed to Lie: Exposing Corruption in the Department of Justice (Dallas: Brown Books Publishing Group, c. 2014). Weissman and his associates, pursuant to their Enron success, sought to demolish Merrill Lynch as well as Anderson Accounting by alleging a “conspiracy” involving “wire fraud.” Jim Brown was one of the Merrill Lynch employees found guilty and sentenced to prison, but Powell, who “had seen hundreds of indictments” while working for the Department of justice, “immediately recognized that the charges in the indictment of Jim Brown and his codefendants were absurd” (#52). Importantly, she found that the prosecutors had failed (as required by the Supreme Court in what is known as the Brady rule) to share with the defense attorneys the evidence to be presented in the trial. Reading the record of the trial, many “clear errors of law” stood out. Compounding the injustice, the presiding judge (Ewing Werlein) had made many questionable decisions, inevitably favoring the prosecution. Innocent men had been effectively railroaded by prosecutors intent on getting convictions rather than securing justice.
Brown had been sentenced to four years in prison, so Powell appealed his conviction before the Fifth Circuit Court, which ordered him released and re-sentenced. Then it was back to Houston and Judge Werlein, who bounced the case back to the Fifth Circuit, which sent it back to Werlein! An appeal to the Supreme Court received no hearing. Finally Werlein reduced Brown’s sentence to “time served,” leaving him a convicted felon. Through it all: “No court ever required the politically powerful former prosecutors to answer for their conduct. No court cared that they capitalized on their misconduct repeatedly. It didn’t matter that they had told the contrary a hundred times to the jury and multiple courts, solicited testimony from multiple witnesses that the hidden evidence contradicted, and took advantage of having hidden the evidence even more than did the prosecutors in Stevens. While they contrived a crime and concealed the truth to obtain these wrongful conviction, four Merrill executives went to prison” (#3393).
Only a few readers will be fascinated by the many pages devoted to the intricacies of the judicial process, but those of us concerned with preserving a “nation under law” should carefully consider Sidney Powell’s presentation. She herself was left wondering if she should even continue to practice law! Her faith in prosecutors and judges had been seriously shaken. “If one can be heartbroken by a court, I am” (#414). She had seen, from the inside of the system, how “misguided, ignorant, overzealous, ambitious, narcissistic, or dishonest current and former prosecutors, some of whom destroyed innocent people while they deliberately withheld evidence they knew contradicted their cases, are making daily decisions that affect all of our lives and the very future of this country” (#414).
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At the dawn of the 21st century, Conrad Black was one of the wealthiest and most influential men in the world. A Canadian by birth, he’d put together a publishing empire, composed of dozens of newspapers in the United States and Canada. In 1986 he purchased and revived the London Daily Telegraph, making making it one of the nation’s primary papers. He also settled down in England and enjoyed “access to Cabinet ministers and historians, academics from the best British universities, and thinkers from that extraordinary seam of British intellectual life” (p. 44). He routinely met with the world’s movers and shakers at G-7 summits as well as the World Economic Forum at Davos, Switzerland. He counted as friends notables such as Henry Kissinger and Margaret Thatcher, Donald Trump and Bill Clinton. He was inducted into the House of Lords in 2001, knighted by the Queen, and fully enjoyed his many successes.
Then, beginning in 2003, everything quickly collapsed! A handful of disgruntled shareholders in his Chicago-based Hollinger International corporation lodged complaints—primarily because of what they considered the overly generous (if “standard for the industry”) compensation Black received. They further asked for a special committee to investigate their charges. Pursuant to federal laws regarding “corporate governance” this led to a federal investigation, followed by supervisory mandates and criminal charges that rather quickly destroyed his business and ultimately led to his incarceration in 2008. Leading the assault was Richard Breeden, the former chairman of the U.S. Securities and Exchange Commission who “appeared to see corporate governance as a profit centre” (p. 186) and garnered some $25 million for his services. He would (along with various cohorts of other lawyers) profit enormously while dismantling Black’s corporation.
Breeden’s Special Committee report was titled “A Corporate Kleptocracy.” Though filled with “misinformation and error,” it appeared to be “fully researched and notated” (p. 214). The media, particularly those owned by Black’s old foe Rupert Murdock and led by the New York Times, rejoiced at the opportunity of igniting a firestorm and gave credence to the most exaggerated of the report’s allegations. Black says he “endured the most comprehensive international defamation I can recall in over four decades of close acquaintance with the media, and the special committee report was the tidal crest of it” p. 562). (In time, Black would successfully pursue a “colossal libel suit” against Breeden in Canada.) Aligned with Breeden were federal prosecutors who sought to enhance furbishing their reputation by going after such a prominent, wealthy man. “Mine was the fate many people enjoy seeing inflicted on apparently overconfident, powerful, even glamorous people who seem to be too much enjoying themselves” (p. 154).
Black was brought to trial in Chicago, largely because prosecutors have learned to manipulate “plea bargaining in order to pursue the biggest fish, regardless of the facts” (p. 267). One of his long-term business partners, David Radler, gave an “‘allocution,’ confessing criminality, lies, and cowardice” (p. 301), falsely accusing and betraying Black in exchange for a six-month jail term. Though Black’s attorneys effectively cross-examined and discounted Radler’s testimony, though many observers thought the trial would result in an acquittal, and though in other U.S. circuit courts s he would probably have been acquitted, the prosecutors persuaded the jury to follow the judge’s instructions and find Black guilty of violating the “Honest Services Statute.” The judge then sentenced him to four years in prison.
Black adjusted reasonably well to prison and providwa a number of fascinating vignettes of and insights into his fellow inmates. His attorneys pursued various appeals and persuaded the U.S. Supreme Court to consider his case in 2009. The high court vacated his conviction and he was released on bail awaiting a further resolution of it all before the Circuit Court in Chicago. There he had to deal with Judge Richard Posner, and though Black’s team cogently argued the law and the facts, they were “dealing with a judge who seemed determined to send me back to prison for as long as possible” (p. 488), so Black would return to prison to serve the remainder of his four year term. While in prison, Black wrote A Matter of Principle (New York: Encounter Books, c. 2012), a well-written (if inevitably self-serving) account of judicial abuse. Insofar as it is a truthful narrative (and various journalists and attorneys confirm it), the book contains an alarming indictment of the American justice system. For the general reader there are, without question, far too many intricate details regarding complicated corporate structures and legal processes, but the book is well worth reading and pondering inasmuch as it reveals distressing dimensions to America’s legal system. As Alan Dershowitz says: “When a great writer is falsely imprisoned for a crime he didn’t commit and decides to write a tell-all non-defensive account, the result is likely to be riveting. Conrad Black’s memoir does not disappoint.”
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In Geoff Shepard’s The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (Washington: Regnery History, c. 2015) we encounter a truly revisionist historical work. A graduate of Harvard Law School, Shepard was accepted as a White House Fellow in Nixon’s administration and soon became “the youngest policy-making lawyer on the White House staff” (#122). While there he worked with H.R. Haldeman, John Ehrlichman, Gordon Liddy, Chuck Colson, and John Dean—all the major figures in the Watergate scandal. He personally “transcribed all of the White House tapes that were included in the Blue Book released to the public at the end of April 1974” and officially represented the White House at the Supreme Court when oral arguments were made regarding a subpoena for the tapes (#140). While most of his former friends and colleagues had either resigned or been imprisoned, Shepard remained “relatively unscathed” and stayed on through the transition to President Ford, leaving in 1975. Thenceforth he has hosted annual reunions of Nixon’s White House staff and produced “a series of Nixon Legacy Forums highlighting many off the public policy initiatives of our administration” (#165). Since no one else seemed inclined to “write about their experiences,” Shepard embraced the task, spending hundreds of hours in the National Archives and scoured the private papers of Judge John Sirica, special prosecutor Leon Jaworski, et al. Some of the most important documents have just recently been made available—thanks to the Freedom of Information Act. (Many of these documents are fully reproduced in the book’s appendices.) “But for Watergate,” Shepard says, “Richard Nixon would have gone down in history as one of America’s greatest presidents” (#182).
“There is no question,” he says, “that the original Watergate break-in and ensuing cover-up entailed extensive criminal wrongdoing. The essential question, then as now, is whether this criminal activity was confined” to the likes of Gordon Liddy and John Dean, or whether they were following the orders of men close to President Nixon (#4226). In fact, John Dean recently said that neither President Nixon nor his close advisors had any “intent” to “break the law and that Nixon had little idea of Watergate’s implications” in the early days of the scandal” (#880). Still more, the celebrated “smoking gun” tape was not even about Watergate! It was, instead, “‘an effort by Haldeman to stop the FBI from investigating an anonymous campaign contribution from Mexico that the Justice Department prosecutors had already agreed was outside the scope of the Watergate investigation’” (#940). Thus Nixon was driven from office because of a misinterpretation of a recorded conversation that had nothing to do with the crimes of Watergate.
In the National Archives Shepard found documents demonstrating “that as the Watergate scandal unfolded, federal judges hearing the Watergate cases held secret meetings with persons whose interests were adverse to President Nixon’s and his top aides’. The most outrageous of these confidential gatherings were the ex parte meetings between judges and Watergate prosecutors. . . . . As Leon Jaworski, the second Watergate special prosecutor, later confided to the reporter Bob Woodward, ‘there were a lot of one-on-one conversations that nobody knows about except [me] and the other party’” (#427). Jaworski was referring to his meetings with federal District Court Judge John Sirica, an “arrogant jurist” who “became convinced that he alone could thwart the cover-up and bring Nixon and his top aides to justice—his justice and in his courtroom” (#589). In one such meeting, for example, the prosecutors sought to “lobby Sirica in advance of the forthcoming grand jury report and to gain his concurrence on how it should be handled, but without tipping off the other side” (#1185). In another instance, “Jaworski slipped into Sirica’s chambers a half hour before the hearing for yet another private, off-the-record meeting to go over the judge’s and the prosecutor’s respective roles” (##1278). “Documents uncovered to date confirm at least nine secret face-to-face meetings between Judge Sirica and Watergate prosecutors” (#1311). Most probably there were many more! Pursuing his own ends, Sirica disregarded the defendants’ constitutional rights and “acted as an arm of the prosecution.” Such collusion, Shepard says, is simply “breathtaking.”
Shepard argues that “Nixon was unfairly hounded from office and that the public has been misled about the Watergate scandal” (#174). In particular, “judges and lawyers who should have known better, committed gross violations of legal propriety, cutting ethical and legal corners, and making a mockery of the rule of law.” Sadly enough, “Nixon was done in by officers of the court, the very people sworn to uphold the law and the Constitution—federal judges and federal prosecutors, who met in secret and reached back-room deals on how best to take him down and secure convictions of his senior aides. That is the real Watergate scandal, a story told for the first time in this book” (#418). When prosecutors and judges collude, nothing fair can result! Amazingly, Judge Sirica “cross-examined witnesses in front of the jury, urging them to provide a fuller story and to implicate others. He publicly criticized the prosecution for not aggressively pursuing other possible defendants. At the trial’s conclusion, he announced his frustration at not having uncovered the real story, the ‘truth’ as he characterized it, and called for a Senate investigation. He even went so far as to demand that the prosecution bring before the grand jury a list of persons who he believed must know more about the scandal than had come out in his courtroom. His provisional sentences of up to thirty-five years for first time burglary convictions [issued, following an ex parte meeting with Sam Dash, the chief counsel of the Senate committee investigating Watgergate] to coerce confessions needed to indict White House figures] remain a classic example of judicial excess” (#1974)
Federal prosecutors were determined to “get Nixon,” whatever the cost. The first special prosecutor heading the Watergate Special Prosecution Force, Archibald Cox, was quite close to all the Kennedy brothers and had worked with Teddy in trying to defeat Nixon’s Supreme Court nominees. Of the eight top WSPF lawyers, seven had worked in Robert Kennedy’s Department of Justice and were ardent Democrats. Cox also replaced seasoned career prosecutors with political partisans. The second special prosecutor, Leon Jaworski, thought “‘such a person’” as Nixon “‘should not in the national interest continue to lead the country.’” To him, “‘seeing Richard Nixon out of the White House was the most important achievement he could render the country as Special Prosecutor’” (#1569). Jaworski and his team “were supremely confident that they and they alone were in the best position to arbitrate what the House Judiciary Committee should know and act upon” (#1609). Thus they often violated the Brady rule by withholding from the defense information they would use when bringing suspects to trial. Such behavior subverts the due process procedures guaranteed by the Fifth and Sixth Amendments to the Constitution and undermines our judicial system.
Inasmuch as a jury trial is basic to America’s judicial system, selecting jurors is highly important. Unfortunately for the Watergate defendants, Washington D.C., was an overwhelmingly Democratic town. Pretrial publicity, fueled by lots of “leaks,” doubtlessly prejudiced great numbers of potential jurors. The Washington Post and other D.C. media almost unanimously assailed Nixon and his administration. Judge Sirica and the senators on the Ervin Committee craved media attention—and Sirica was in fact rewarded by being named “Man of the Year” by Time magazine in 1973. Though a change of venue would have been appropriate, Sirica was determined to preside over the trial and keep in in his D.C. courtroom. But Judge George MacKinnon of the D.C. Circuit Court says: “‘If ever in the history of our country there was a criminal case which by law had to be transferred to another place for trial because of prejudicial pretrial publicity alone, this is that case’” (#3611). In Shepard’s opinion, Sirica got the jury he wanted; “the dice were loaded, and the verdict was a foregone conclusion” (#3598).
Concluding his treatise, Shepard insists that President Nixon was forced to resign and his senior aides were convicted and imprisoned not only because of false charges but because of the “collusion between judges and prosecutors who had convinced themselves that their desired ends justified any means” (#4131). “The Watergate defendants—particularly Mitchell, Haldeman, and Ehrlichman—were systematically and deliberately denied a fair trial. They faced a hanging judge whose numerous secret ex parte meetings with interested parties and prosecutors would appall anyone acquainted with the standards of judicial conduct and whose temporary sentencing policy underscores his lack of objectivity. They were pursued by highly partisan prosecutors who favored their friends and punished their enemies. They were tried by jurors drawn from a hopelessly tainted and biased pool, a disadvantage the responsible judges refused to ameliorate. Finally, they had recourse only to a partisan appellate court that had been corrupted by an ex parte meeting between its chief judge and the special prosecutor” (#4148).
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