(New York: Encounter Books, 2011) Reviewed by Jerri Lynn Ward, J. D.
"When I use a word," Humpty Dumpty said in a rather scornful tone,
"it means just what I choose it to mean-neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master-that's all."1
In February 2002, federal agents, helmeted, shielded, and wearing bullet-proof vests, burst into a work place and put a gun to the head of an employee, demanding that he "get off the phone! Now!" Did this happen at a meth lab or opium den? No, it happened in the offices of a medical doctor specializing in pain management, in full view of his patients. After being handcuffed and shackled with leg irons, the doctor was presented with a 313-count indictment. Many of the charges were dropped over time. At trial, the jury acquitted him of 30 of the remaining 69 charges and hung (due to one juror) on the other charge. Despite the acquittal, the government refiled the charges and the doctor plea-bargained to voluntarily surrender his license to practice medicine. He was sentenced to five years of probation.
In 1993, two businessmen were indicted for shipping technology to India without a license, although a reasonable reading of the governing regulations indicated that no license was needed. The jury convicted the businessmen and they retained a new defense team prior to sentencing. The new team, which included the author of Three Felonies, discovered that the Commerce Department had presented educational training seminars to industry personnel in which the Commerce Department taught the same position on the regulations that the defense had argued for at trial. The U. S. Delegation to an international organization had taken the same position as the Commerce Department. These positions were the direct opposite of the argument presented by the prosecution at trial. Upon discovery of these facts, the federal trial Judge vacated the convictions and acquitted the men and made a point of writing into his opinion the quote from Through the Looking Glass that begins this review.
Harvey Silverglate is a criminal defense and civil liberties lawyer who has been in practice since 1967. He is well known for his work on behalf of FIRE, the Foundation for Individual Rights in Education, which has defended many conservative university students and professors from unjust actions taken by university professors and administrators in the name of political correctness. In his book, Three Felonies a Day: How the Feds Target the Innocent, Silverglate argues that federal law has become so massive, pervasive, and vague, that professionals and businessmen unknowingly commit at least three felonies a day, all of which can be detected by a prosecutor who picks a target and then marshals a case.
Silverglate notes that things began to change significantly around the 1980s as prosecutors began to use law and regulations like Silly Putty to criminalize normal business conduct. He says the federal judiciary ceased to be an effective check on prosecutorial abuse because federal judges are more often plucked from the ranks of the prosecution and are not only buying "into the amorphous definitions of federal crimes favored by prosecutors, but ..." are knowingly enabling questionable tactics.2 The result is that innocent people are being caught up in federal prosecutions and having their lives ruined, families destroyed, and wealth dissipated-although they have broken no law and harmed no one. Even if they are ultimately acquitted, the damage to their lives, reputations, and finances remains. The government offers no restitution to those they have falsely accused. The targets of this abuse are doctors, lawyers, businessmen, politicians, journalists and, in one case, an artist.
Silverglate says the problem goes back to the 1950s when prosecutors attempted to undermine the traditional Common Law requirement of criminal intent. This means that "scienter" or guilty knowledge (or mens rea-"guilty mind") was a necessary element to prove a crime. In other words, the person had to know that what he was doing was illegal to be criminally punished. Given the massive number of vaguely written criminal statutes, it is virtually impossible for anyone to avoid committing a technical violation of the law. Thus, with enough investigation and creativity, an ambitious prosecutor can gather enough "evidence" to indict almost anyone.
Supreme Court Justice and U. S. Attorney Robert H. Jackson, who also served as U. S. Attorney General, warned about this very possibility as far back as 1952, foreseeing that prosecutors would be tempted to target individuals utilizing the "great assortment of crimes" that Justice Jackson noted had been passed by Congress even at that time.
Jackson's fears have materialized, as evidenced by the cases described in Three Felonies. Silverglate describes the targeting of politicians and business men by ambitious prosecutors. Rather than seeing evidence of criminal activity and acting upon it, federal prosecutors pick targets and build a case-not upon the complaint of a victim-but through "laddering." They indict lower-level employees or officials and, through threats and intimidation, attempt to build a body of testimony by the indicted that will result in an indictment of the actual target. Prosecutors intimidate the indicted into plea bargains in return for favorable testimony against the target-that testimony being obtained through coercion. As Alan Dershowitz, who wrote the foreword to Three Felonies, says, such witnesses, faced with massive counts in indictments, ruinous legal fees, and confiscation of assets through asset forfeiture laws prior to trial, are taught not only to "sing" but to "compose."3
In some of the cases chronicled, plea bargains are coerced by threats to family members, as was the case with Michael Milken. Federal agents visited Milken's 92-year-old grandfather in a not-so-subtle attempt to imply that other family members were at risk of indictment. That, coupled with an indictment against his brother, resulted in Milken taking a plea to protect his family. After the conviction, noted legal scholars who analyzed the case concluded that the conduct for which Milken was indicted was not criminal.
According to Silverglate, prosecutors exert their power in order to impose their own ethics and standards on society and also to fulfill personal ambition. Their tools are vague laws originally passed to combat organized crime; and newer federal laws which are poorly crafted and vague; as well as the massive body of federal civil regulations which prosecutors bootstrap into federal crimes. As a result, federal drug agents have supplanted the medical profession's standards of care with their own, companies' normal business practices are spun as crimes, and innocent people are crushed.
Can We Fix It?
Silverglate includes a "call to action," outlining what he believes must happen to change the situation. He rejects the possibility of internal reform of the Department of Justice (DOJ) because it is entrenched in a culture of "win at all costs" prosecutions regardless of which political party is in power. Moreover, he sees no effective check on the DOJ by the judicial branch because nine times out of ten the "Judges are former DOJ honchos." He believes that a solution is only possible powered by coalitions of groups who put aside political differences and cooperate by filing friend-of-the-court briefs, lobby for legislative or regulatory change, and engage in other kinds of advocacy. In other words, salvation by politics while ignoring the flawed presuppositions of the flawed system which has supplanted Biblically-inspired Common Law. Silverglate's proposal ignores the root cause of the failure of the justice system: the loss of faith in the triune God. As Rushdoony wrote, "Law perishes when the faith which undergirds the law dies."4 Silverglate, instead, throws the problem back into the lap of the humanist establishment that caused it.
As a result of our loss of faith, we have abandoned Biblical law as it was expressed in Common Law. We have supplanted Common Law with prescriptive law in the form of statutes and regulations. In doing so, we have shifted ultimate authority from God to man. Thus, any attempts to solve the problems laid out in Three Felonies by a political solution are futile. The fruits of humanist, prescriptive (statutory) law are apparent.
In Law and Liberty, Rushdoony wrote that Common Law was Biblically based, with justice being the primary goal. It was administered by juries of one's peers rather than by a specialized, elite class (judges, lawyers, bureaucrats) because Common Law was easily understood and known. Moreover, it was personal because its main function was restitution to the injured party by penalizing the guilty.5 Rushdoony said this about Common Law: "In short, the law operated for the welfare of the citizen rather than for the impersonal state and its concept of society."6
The shift from Biblical/Common Law has been accompanied by a move away from justice to an emphasis on statist power over men. Rushdoony took note of the "constant reference" to "compelling state interest" in the pages of modern case law.7 Whereas, he wrote, the "most compelling state interest should be freedom with justice," it has now deteriorated into control by the state.8
Humpty Dumpty Justice
Compelling state interest as control of men manifests itself in many of the cases discussed in Three Felonies. One case in particular examines not only the raw grasp for power by the DOJ, but the complicity of the federal judiciary in undermining justice. Bradford C. Councilman was vice-president of Interloc, Inc., which provided online listing services for rare and out-of-print books and acted as an Internet service provider (ISP) for its customers. To protect customers' emails from being lost during a system failure, Interloc made copies of the emails before forwarding them to the intended recipient.
Councilman was indicted under federal wire-tapping laws passed in the era before the Internet. The compelling issue before the court was whether or not copying of those messages was a violation of federal wiretapping statues in light of the fact the messages were not in transit in a "wire" when "intercepted" (copied). Instead they were stored on the server prior to being directed to the recipient. The defense argued that because the messages were not in transit, but residing on a server to which they were purposely directed before being copied, the conduct was not a violation of the Wiretap Act. The DOJ argued a broad application of the law, thereby criminalizing the conduct.
Prior to the trial, the federal judge hearing the Councilman case, Judge Michael Posner, discovered that the Ninth Circuit (this case resided in the First Circuit) had already decided a case involving the interpretation of the same Act, Konop v. Hawaiian Airlines.9 The Ninth Circuit interpreted the Act to mean the same thing that Councilman was arguing before Judge Posner, that it is not wiretapping under the Act to access online communications when they were no longer in transit and were stored on a server. Furthermore, the attorneys for Councilman discovered that the DOJ had argued, in the Konop case, that it was NOT wiretapping to access email when they were not in transit, but instead stored on a server, the opposite tack it took in its prosecution of Councilman. Silverglate noted, "There was some speculation, particularly among privacy advocates and civil libertarians that in Konop the government may have narrowly read the statute in order to protect government agents from being sued for post-9/11 intrusions into stored messages, while on the East Coast it was trying to convict a private citizen under a broad reading."10
As a result, Judge Posner dismissed the indictment against Councilman and the DOJ appealed. From there, the story gets much worse in terms of judicial tyranny and activism. In true pharisaical form, the First Circuit reinstated the indictment though the court acknowledged that it was not clear that the plain text of the Wiretap Act covered Councilman's actions. The Court claimed to resolve "this continuing ambiguity" by looking at the legislative history and deciding that Congress had intended to give "broad" protection to electronic communications, and that Councilman was put on sufficient notice that he was committing a crime by accessing the stored emails. The dissenting justice wrote a scathing opinion asserting the rule of lenity (a rule requiring that ambiguities in the law be resolved in favor of the defendant) and wrote: "Councilman is being held to a level of knowledge which would not be expected of any of the judges who have to deal with this problem."11 Fortunately, the jury acquitted Mr. Councilman at trial.
The Councilman case is a cogent example of justice trumped by state power. It exemplifies Humpty Dumpty's assertion that definitions are whatever the master wants at the time. The jury saved justice in the end, but the continual erosion of the lawful authority of juries continues and will not always be an effective shield if we continue down this path.
The Councilman case is also illustrative of the extent to which Western law (based in Biblically-inspired Common Law) has been subverted into Soviet-style administrative law where there is no higher appeal than to the bureaucracy which purports to have authority over the issue at hand. The First Circuit certainly bowed to the "authority" of the DOJ, despite its conflicting positions. But, as Three Felonies discusses, the bureaucratic, administrative state contributes by prosecuting ordinary business conduct through the massive Code of Federal Regulations, which presumes control over almost every sphere of life and work and is a formidable tool in the hands of ambitious prosecutors.
Harold J. Berman, in his awesome work, Law and Revolution: The Formation of the Western Legal Tradition, notes this about the unfortunate transformation of Western law: "[W]hat was previously conceived to be private law has also been transformed in the twentieth century by the radical centralization and bureaucratization of economic life..."12 He laments that this has turned law into collectivism with an "emphasis" on "state and social property, regulation of contractual freedom in the interest of society..." as opposed to "individualism of the traditional law" with its emphasis on private property, freedom of contract and "other basic postulates."13
Law without God
The mess chronicled in Three Felonies is far more than the work of individual clueless legislators or crooked prosecutors and judges. It is the logical result of man's denial of the sovereignty of God and His law over all of His creation, and man's wish to be as God and to rule over himself and his fellow man. Though we owe Silverglate gratitude for his illumination of the problems, he falls into the fiction that man alone can reform the federal judicial system and restore justice through politics. Rushdoony says about such beliefs, "Cartesian man lives with a will to fiction and a readiness to believe that, with a capture of the state apparatus by his kind of radical, liberal, or conservative, grace will flow into every area of life, and heaven on earth will be realized."14
Such thoughts put into action are what have brought about hell on earth. King David preferred to fall into the hands of the Living God than into the hands of men. That is because man has exhibited the desire to institute a "totalitarian set of laws to control everything,"15 whereas God's law has limits, "gives plain commandments" which our "humanistic inferences" cannot supplement (unlike statutes and regulations manipulated like Silly Putty by bureaucracies and federal judges) and are few in number.16 Moreover, God reserves punishment for many violations of His law to Himself, unlike humanist law.17
The lesson to be gleaned from Silverglate's book is that we must reject a humanistic law structure and go back to Biblical law as the foundation of our justice system. When you realize that you commit three felonies a day, as defined by humanist law, you live under continual fear of arrest. Our laws create the illusion of rule-by-law, but this masks the reality of rule-by-arbitrary-will-of-man. It functions like the most dictatorial tyranny under the pretence of a just society. All citizens are taught to despise lawbreakers, but this is the hidden engine behind the system as the law veers off all ties to a Biblical law system. The pretense of justice survives even in its absence due to unearned, unjustified respect for the institution. The very political system which created the problem cannot solve it. Only a restoration of faith in the atoning power of God and His law can.
The atonement, however much despised and rejected of men together with the Atoner, is the only force in all of history that can truly redirect history morally.18
We must reject humanistic political solutions and look to God and His law to restore justice. He is the source of all knowledge and justice and it is only through Him that we will have victory: "He who disciplines the nations, does he not rebuke? He who teaches man knowledge, shall not he know?"19 Without His law-word we foster a dead system: "To the teaching and to the testimony! If they will not speak according to this word, it is because they have no light in them."20
Co-founder of Garlo Ward, P.C., Jerri Lynn Ward provides legal representation in the areas of business and commercial litigation, including complex healthcare and regulatory litigation, and health facility operational matters. Her background and prior experience also includes litigation work in the areas of insurance defense, employment, toxic tort, products liability, medical malpractice, business and commercial, as well as criminal matters.
1. Lewis Carroll, Through the Looking Glass and What Alice Found There (1871).
3. Harvey Silverglate, "Kevin White, the Feds, and the press," The Phlog; The Boston Phoenix; February 7, 2012, http://blog.thephoenix.com/BLO...
4. R. J. Rushdoony, Law and Liberty (Vallecito, CA: Ross House Books, 1984), 89.
5. Ibid., 86-89.
6. Ibid., 89.
7. Ibid., 177.
8. Ibid., 177.
9. Konop v. Hawaiian Airlines, Inc., 302 F2nd 319 (D. Mass. 2003).
10. Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent, (New York: Encounter Books, 2011), 260.
11. Ibid., 263.
12. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (U. S. A.: Harvard University Press, 1983), 34.
13. Ibid., 36.
14. R. J. Rushdoony, Sovereignty (Vallecito, CA: Ross House Books, 2007), 386.
15. R. J. Rushdoony, The Roots of Reconstruction (Vallecito, CA: Ross House Books, 1991), 452.
16. Ibid., 452-453.
17. Ibid., 452.
18. R. J. Rushdoony, "The Centrality of the Atonement." Faith for All of Life, Mar/Apr. 2012, 3. Taken from Rushdoony's commentary on First and Second Corinthians to be published by Chalcedon in the near future.
19. Psalms 94:10. We see the opposite of this vision of victory in the 20th verse of this same Psalm, which sounds God's condemnation of humanistic law in no uncertain terms.
20. Isaiah 8:20.