21 January 2013
Reginald Wormwood, Esq.
Wormwood Consulting, Inc.
1000 N. Michigan Ave.
Chicago, IL 60611
My dear Wormwood,
I must congratulate you on your immense success. To speak frankly, you were something of a disappointment when you fixed your attentions upon a single patient. You always seemed to me a little naïve in underestimating the Enemy’s strength and too often couldn’t close the deal. Now that you’ve moved into politics, however, you’ve performed splendidly. You’ve gone from retail to wholesale (if I might permit myself a little levity), and it’s clear that this is where your talents lie.
In the past you’ve encountered difficulties in persuading your patients to come over to our side. You might’ve told them that abortion is a good career move, but some nasty little scruple always held them back. Now, however, when you wrap your arguments in high politics and abstract rights, you get so much further. By the way, I thought that having that 14-year-old plead for an abortion when she was a little older was a masterstroke (note: next time, why ask her to wait?).
I write this not to congratulate you, however, so much as to warn you against resting on your laurels. You might think that things could not be better for us, but as long as the Enemy still wins a trick or two, we can always do better.
At the level of politics, where so much good can be done, I invite you to think how pockets of stubborn resistance might be eliminated. Specifically, think what a wonderful opportunity is presented by the American criminal justice system. America is home to just 5 percent of the world’s population, but nearly 25 percent of its prisoners—2.3 million in total. An additional 5 million people are on parole or probation. This means about 2 percent of American adults are considered criminals. That figure—higher than any other country—should be a matter of immense pride for all of us.
It’s not just the absolute numbers. There’s also the incomprehensibility of the criminal law and the number of criminal offenses. No one knows just how many federal offenses there are, and we are moving closer to the happy state where every American is a potential felon. Remember what our good friend Lavrentiy Beria once said? “Show me the man, and I’ll show you the crime.” That’s where we are today.
(Before I forget, I thought that your moving to Chicago was brilliant. I mean, where else?)
In the past, when lawyers sadly paid more attention to the Enemy, crimes required a guilty mind—what the lawyer calls mens rea. The mens rea requirement was imported into the common law by the despicable canonists, who argued that criminal wrongdoing, like “sin,” assumed moral guilt. Thankfully, we’ve put those antiquated notions behind us with the aptly named “public welfare crimes,” which dispense with the reactionary idea of culpability.
We have progressives to thank for this (along with so much else). Now think what an opportunity it gives us! You’ll recall that Chekhov (a most unsatisfactory atheist) said that, when the audience sees a loaded pistol on the wall in Act I, it must go off by Act III. Misuse of criminal law is a loaded pistol, and you might explore opportunities to help pull the trigger. We’ve succeeded in other countries, such as Russia, where Mikhail Khodorkovsky was sentenced to 14 years in prison in a series of show trials, ostensibly for fraud but in reality for having the temerity to oppose Vladimir Putin.
Without any great difficulty, you might enlist ambitious prosecutors, who have enormous discretion and may generally overreach with impunity. In federal grand juries, which operate in secret and can go on for years, prosecutors are virtually immune from judicial supervision. They can call witnesses (including the target of the investigation) without revealing the nature of the case, and can introduce hearsay evidence. Not surprisingly, they seldom fail to win indictments. Since an indictment inflicts enormous reputational losses, the mere threat of grand jury proceedings is often enough to bring people to their knees.
The Department of Justice increasingly takes advantage of its leverage to obtain convictions of company executives. Under the “Holder memorandum” (named after Eric Holder), the Department of Justice encourages prosecutors to base their prosecutorial decisions on the degree to which the target firm cooperates with the investigation. This includes hanging the company’s executives out to dry by inducing their employers to breach their contractual duties to pay for their employees’ legal fees.
Prosecutors are also advantaged by their ability to bring multiple charges, under multiple theories of criminal liability. The prosecutor need win a conviction on only one count, while the defense must win them all. A jury, minded to split the difference, might easily acquit on 99 counts and convict on one. For sentencing purposes, however, there is generally no difference between a conviction on one count or many.
When federal prosecutors bring a case, they also have all the financial and investigative resources of the Department of Justice at their disposal. They can buy favorable testimony by selectively granting witnesses immunity from prosecution, or by threatening to deny such immunity. They can coerce a guilty plea to a lesser charge by threatening to indict on a more serious one. The inequality in bargaining power is magnified by the “trial penalty,” the harsher sentences courts impose on defendants who refuse to plead, go to trial, and are convicted. As a consequence, nearly everyone caught in the meshes of the federal criminal system pleads guilty. Some calculate that federal prosecutors secure guilty pleas from about 96 percent of defendants and win convictions at trial against about 3 percent. Only one-half of 1 percent are acquitted.
On taking office, an incoming president might replace all incumbent U.S. Attorneys, as was done without comment in 1993. The appointments require Senate confirmation, and individual senators have by tradition had a strong say in who will serve, but it cannot be beyond the wit of a president to place several of our friends in office, and then let nature take its course.
One saw a hint of what this might mean in the 2012 election campaign, when an Obama campaign manager suggested that the Republican nominee had committed a felony under federal securities law. “Either Mitt Romney, through his own words and his own signature, was misrepresenting his position at Bain to the SEC, which is a felony,” she said, “or he was misrepresenting his position at Bain to the American people to avoid responsibility for some of the consequences of his investments.” The charge went nowhere, except as one more element in a happily effective campaign. What was remarkable, however, was that no one much noted that the campaign had ascended into Khodorkovsky territory.
That’s not to say that presidents will throw opposition leaders into jail, as they do in Ukraine. However, it is not beyond the realm of possibility that right-wing press lords, investigative magazines, and major opposition donors will find themselves under criminal investigation. Or that IRS tax audits and Labor Department investigations will be shaped by political considerations—if only because all that seems to happen now.
Perhaps Act III is not so far away after all.
Your affectionate uncle,
P.S. I liked you better with the mustache.