Last week President Donald Trump continued his push for criminal justice reform, meeting with leading senators, governors, and state attorneys general, plus his key Cabinet officials, to strategize on getting a significant bill to his desk.
Reforming the criminal justice system is arguably the only issue that enjoys bipartisan support. Under President Trump’s leadership, “The First Step Act,” which would shift the federal prison system from warehousing inmates to focusing on preparing them to reenter society as good neighbors and productive members of the community, passed the House 360-59, with only two Republicans opposed. For conservatives, there has been a remarkable turnaround on reforming criminal justice.
Thus, six years ago the Washington Monthly observed that the conservative movement “decided that prisons are a lot like schools: hugely expensive, inefficient, and in need of root-and-branch reform.” Much of the credit for this extraordinary political shift belongs to a man who has been working tirelessly for more than two decades behind the scenes as the conscience for criminal justice reform. More recently he has been quietly laying the groundwork for the Trump initiatives. That catalyst is the formidable and highly respected Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform. (More about Pat, shortly.)
Unfortunately, President Trump gets little credit from liberals for his leadership in criminal justice reform.
In addition, a few holdovers from the “tough on crime” crowd still resist Trump’s stewardship and continue to defend the dysfunctional status quo. More broadly, a clique of top FBI officials and high-level Department of Justice careerists remains intent on reversing the election of Donald Trump. And if they can’t “get” Trump, they go after his inner circle to bring him down. Civil liberties types have long (and appropriately) opposed prosecutorial misconduct. However, now they are mostly silent about the appearance, if not the reality, of the federal intelligence apparatus/FBI/Department of Justice tilt toward Hillary in the 2016 election, and the relentless assault by the special prosecutor to undermine President Trump’s legitimacy. As civil liberties guru Alan Dershowitz (who voted for Hillary but opposes special prosecutor Bob Mueller’s promiscuous witch hunt) noted last night on Tucker Carlson’s show, traditional liberal legal scholars and judicial experts seem to look the other way at this double standard.
Perhaps Michael Cohen did violate some laws relating to taxicab franchises he invested in years ago, but what does that have to do with the special counsel’s charter to investigate President Trump? Why ransack the office of Cohen, Trump’s long-time lawyer, except for files to leverage against Trump? And Paul Manafort may indeed be guilty of crimes that pre-date his brief association with Trump’s presidential campaign; the prosecution concluded its case yesterday, and soon a jury will decide. But an overpowering predawn raid to terrorize Manafort and his wife, then no bail, and then solitary confinement?
Cohen and Manafort are hardly the only examples so far of the special prosecutor’s collateral damage; and anyone associated now or in the past with Trump apparently is “fair game.” It’s Soviet style — new crimes and old crimes, real crimes and fabricated crimes, false confessions, a lighter sentence or immunity…pressure to testify against the real mark, Donald Trump. “Show me the man and I’ll find you the crime,” famously explained Lavrentiy Beria, chief of secret police for mass murderer Soviet leader Joseph Stalin. “#MeToo” note: sexual predator Beria used his government power to rape hundreds of teenage girls, then imprisoning and even killing some for displeasing him. The communists later awarded a Soviet military hero-general the “honor” of shooting Beria in the head, not for all his rapes, but for (Alexandria Ocasio-Cortez, you take note:) “crimes against the (socialist) state.”
In the United States, political investigations have long targeted high-profile conservatives, indicting elected officials like then Governors Rick Perry and Bob McDonnell, Senator Ted Stevens, and House Majority Leader Tom DeLay, only to have their prosecutions overturned. In my home state of California, Congresswoman Bobbi Fiedler, who would have defeated Democrat Alan Cranston in 1986, was derailed by a Democrat prosecutor’s frame-up, only to have her indictment thrown out of court. Still the damage was done, her political career was ended, and Cranston was reelected.
In my book Whiplash: From JFK to Donald Trump, A Political Odyssey, I also chronicle another prosecutorial sham. A few years after the Fiedler case, the Feds targeted a rising conservative star in the once Golden State. Thirty years ago this month, the FBI and the U.S. Justice Department ended the political career of one of California’s most popular conservative leaders, then-Assemblyman Pat Nolan, a principled and intelligent man respected for his vision and ability, and for his character, as well.
Like myself, Pat had been a leader in Youth for Reagan (1966) in electing Ronald Reagan as governor. Only a dozen years later, at the age of 28, Pat won the State Assembly seat he had grown up in, taking on the establishment in both parties by strongly supporting the Proposition 13 property tax cut/tax limit ballot measure, a state constitutional amendment that started the nationwide tax revolt. Within just a few years, Pat became State Assembly Republican leader. I consulted with Pat as the Assembly Republicans led by him added seats each election; by 1988 they were within five votes of a majority, at which point Pat would become Speaker of the State Assembly.
This had national significance because if Republicans were a majority in the California State Assembly they would, after the 1990 census, not only control the drawing of state assembly district lines but also have a major role in drawing congressional lines, which could have resulted in a net swing of as many as twelve seats in Washington from Democrat to Republican.
However, on the night of August 24, 1988, just ten weeks before the General Election, the FBI searched some Capitol offices. The resulting publicity from the very public raid on Republican Leader Nolan’s office sucked the energy from the Republican campaign to win control of the Assembly.
It turned out that the FBI had created a phony out-of-state corporation which ostensibly claimed it would provide much needed entry-level jobs in a severely depressed area. Agents posing as executives of this false business then sought legislation to be allowed to apply for a small business loan with $5 million in capital, half the customary, but arbitrary $10 million.
The requisite legislation was broadly supported by Democrats and Republicans. So it was clearly absurd for the FBI to later contend that Pat Nolan’s backing for the supposed corporation’s “jobs plan” for a blighted area had to be “bought.”
Indeed, it was natural that Pat would support this proposal thirty years ago to bring new jobs to an area of high poverty and unemployment. Pat already was the author of legislation to establish a California version of Jack Kemp’s acclaimed national Enterprise Zones: area-targeted reduction of regulations and taxes to attract jobs, especially to inner cities. (In fact, Pat that year/1988 co-chaired Jack’s presidential campaign in California, and they remained close friends until Jack’s death.)
Now — a generation later — Sen. Tim Scott (R-SC) has taken up the cause. Just two days ago on Face the Nation, Sen. Scott (R-SC) thanked President Trump for his strong support of Scott’s Enterprise Zones legislation to further alleviate African-American unemployment.
Here’s important background on what happened three decades ago.
After the legislation passed both houses of the California State Legislature overwhelmingly and was awaiting the Governor’s signature, the “businessmen” told Pat’s staff they wanted to contribute $10,000 to his effort to elect a Republican majority. They invited Pat to a hotel suite across from the Capitol. After some small talk, they told Pat they were eager that he be elected Speaker of the State Assembly and handed him a sealed envelope which Pat, in turn, gave to his staff to deposit. He did not know it had two checks, each for $5,000. One was payable to his campaign committee, and the other left the payee blank. Apparently, the FBI hoped Pat would deposit that check into his personal account. Such a thought never crossed Pat’s mind; his campaign team deposited that check into the Assembly Republicans’ campaign account.
Many Democrats would vouch for Pat’s probity. In fact, Assemblyman John Vasconcellos, arguably the most liberal member of the legislature, forcefully defended Pat. FBI agents, in their interviews with Pat’s constituents, donors, and staff, and with many lobbyists, were told the same thing: Nolan has integrity. Even his most ardent political foes agreed — Pat Nolan is an honest man.
The Feds faced a double dilemma. (1) Pat had repeatedly voted for the same kind of legislation long before the phony businessmen contributed to his campaign; and (2) Pat voted for their specific legislation before, not after their donations. In sum, how could Pat be bribed to support a bill that he already supported, consistently, publicly, strongly — legislation so popular it hardly required any political arm-twisting.
No wonder there was serious opposition within the U.S. Attorneys office to charging straight-arrow Pat with a crime. So, for a while, the Feds instead focused on several Democrat legislators reputed to be shady. They indicted and convicted three Democratic state senators as well as a Democratic member of the powerful California Coastal Commission.
End of story? Not quite: They decided they needed to go after a big name Republican.
Thus, an ambitious U.S. Attorney and two zealous FBI agents nonetheless continued to press for prosecuting Pat and contrived to build a case. Desperate, they even investigated members of Pat’s family. Then back to Pat. At one point, they asked the IRS to “find something.” But the Supervising IRS agent was an honorable man. After reviewing Pat’s tax returns going back a decade, he told the FBI to “do your own dirty work. Nolan has not profited from his office at all.”
Yet this FBI hit squad remained undeterred and pursued intimidation. FBI agents harassed potential witnesses who vouched for Pat, claiming these decent people somehow must be part of a shakedown operation. When former staffers insisted that Pat was honest, FBI agents threatened to indict them as well, unless they would change their testimony to fit the government’s forced narrative. Aggressive FBI agents showed up repeatedly at their offices and even at their homes, often very late at night or very early in the morning.
This government thuggery continued for over five years. Then, a mere 97 days after Bill Clinton was inaugurated in 1993, Pat was indicted. In return, the holdover U.S. Attorney had told people he hoped that Clinton would retain him in office. Ironically, he was dismissed shortly after he indicted Pat, who ultimately would bear a heavy burden for the unholy alliance between the two ruthless FBI agents and their enabling useful idiot, this self-dealing prosecutor.
To help their implausible case, the FBI had pressured a Nolan staff member to say that Pat had instructed her to solicit contributions in return for Pat’s vote. This same woman previously and repeatedly had told the FBI agents that Pat was honest and certainly had not sought or accepted a bribe.
But the agents conveniently made no recording of her five-hour interrogation. Yet, they would later put quotation marks around what she allegedly said, and then insist she made conflicting statements so they could accuse her of “giving false testimony to a federal officer” (18 U.S.C. § 1001).
When she objected that the supposed quotes were not her words, they responded, “Who is a jury going to believe, you, a corrupt staffer, or a fine upstanding FBI agent?” (If this standard operating plan sounds familiar, that section of the federal code is the exact basis for the Feds’ indictment of General Michael Flynn whose crime is alleged perjury, when in fact his “crime” is refusing to incriminate Donald Trump.)
In Nolan’s case, the FBI agents dragged the woman in for more questioning month after month, always pressuring her to change her earlier testimony. She was living a nightmare: by now, her husband had left her, and she was forced to mortgage her home to pay for her lawyer while she struggled to raise her seven-year-old son alone. The FBI told her that she had already lost her husband and would soon lose her home and then go to prison for so long that her son would be married and have children of his own before she would be released.
The FBI tactics finally broke her will. She buckled under the pressure and agreed to lie: she would testify that Pat had instructed her to get money in return for his vote. But the night before she was to appear in court, she wrote a long statement denouncing the FBI’s methods, and saying she only implicated Pat because the FBI threatened the loss of her son. Her attorney wouldn’t let her read the statement to the Court, telling her that if she read it, the Feds would renew the charges against her and come down on her even harder.
Using her extorted testimony, the U.S. Attorney indicted Pat for six felonies, carrying potential sentences of more than twenty years. The federal system encourages “overcharging” a defendant where conviction on even a single count would bring a draconian prison term. The intent is to force the defendant, even if innocent, to admit guilt in return for a lesser sentence. This all too standard operating plan is a “win” for the prosecutors, but a defeat for (per the Superman narrative) “truth, justice and the American way.” Plea bargaining was supposed to help relieve overcrowded courts; all too often, it is a tool used to effectively coerce a defendant, often indigent but sometimes even wealthy, to plead guilty to a crime he or she did not commit.
As a consulting and testifying expert in litigation back then, I was involved in several dozen cases, most of them civil, some criminal. For Pat’s defense attorney, I conducted a survey, using a sample drawn from the potential juror universe of that federal judicial district. I found that, partly as a result of the negative publicity from previous convictions of state legislators, likely jurors would vote to convict Pat even before they heard any evidence! Based on my experience and all the data I reviewed, I reluctantly concluded that, despite Pat’s strong case and what seemed theoretically a good chance of acquittal, a jury probably would convict Pat of at least one count.
Pat could go to trial and hope to be acquitted; there was ample evidence that his staffer had been pressured into changing her testimony. Plus, character witnesses would attest to Pat’s integrity. But hope is not a strategy. Pat was married and his daughters were ages 4 and 3, and his son was 10 months. If Pat were convicted, his stacked sentences would send him to prison for so long that he would miss their entire childhood.
So, Pat pleaded guilty to something he didn’t do, thereby limiting his separation from his wife and children to 29 months in federal custody. The federal system of extorted pleas reminds me of the way authoritarian regimes interrogate suspects until they finally admit to crimes they did not commit.
Dictatorships have false confessions for public show trials, the United States has plea bargains in public open court. In both cases, the defendant publicly “confesses” to the “crime.”
I remember, as if nearly a generation ago were yesterday, when Pat called me in the evening to tell me that he would plead guilty the next morning. I was dejected. I realized then how far we had come from Alexis de Tocqueville, whose Democracy in America, a classic of American conservatism, celebrated a sense of community. Indeed, Tocqueville was inspired also by America’s aversion to incarceration. As for Pat — he would be inspired by the story of Joseph in Genesis, “What man intended for evil God intended for good.”
People of faith believe that “everything happens for a reason.” Chuck Colson in 1974-75 had served time in prison. He went on to become America’s renowned guiding light as the moral force for Christian prison ministry. Years later, Colson would recruit Pat, while in prison, to become, on Pat’s release, the President of Colson’s Justice Fellowship. A lawyer, and then a leader in the California Legislature, Pat was uniquely qualified also by his own predicament, that is, his firsthand experience, and his time in prison. He became an effective national leader in all aspects of federal, state, and local criminal justice reform. Not a minister by training, he was — as a spiritual being who had found his calling — evangelical in his advocacy of restorative justice, a reliance on Biblical concepts that even many atheists now recognize as both ethical and efficacious.
Pat oversaw the preparation of “Friend of the Court” briefs in defense of the Religious Freedom Restoration Act (RFRA). And the Supreme Court unanimously upheld the constitutionality of RFRA in three separate cases. Pat’s work has united Christian prisoner outreach with groups like Aleph, its Jewish counterpart, and also with nonreligious reformists.
I was privileged over many years to volunteer time to help Pat often as he recruited many of our conservative friends and colleagues, icons of the conservative movement with unquestionable credentials — like David Keene and Grover Norquist, and former Reagan Attorney General Ed Meese, and former House Speaker Newt Gingrich — to endorse fundamental change in criminal justice. Pat united in this cause, his cause — a myriad of conservatives: traditional, social, libertarian, fiscal, evangelical, populist. Also, Pat’s extraordinary ability to reach across the political spectrum is legendary. That’s why so many liberals like Van Jones and Donna Brazile respect and admire Pat and work with him right now to find common ground.
Pat’s accomplishments are too numerous to enumerate. In state after state, red and blue, Pat has worked closely with governors and state legislative leaders of both parties to rehabilitate inmates and to pass critical legislation creating major, historic reforms. And on the national level, Pat and his tight-knit group of conservative leaders have been instrumental in the passage of important national bipartisan legislation — including the Prison Rape Elimination Act, the Second Chance Act, and the Fair Sentencing Act.
Perhaps Pat is the only “ex-felon” who has participated in three bill signing ceremonies at the White House. It’s time, now, as I shall explain, to say “former-ex-felon” — that is, for our nation to repair the damage that ambitious bullies in the federal government wrecked on Pat and his family.
Pat has spoken eloquently about the need to incentivize the search for justice. In other words, reward FBI agents and federal prosecutors not for the number of convictions, but for finding the truth, wherever it leads, even if the truth leads to declaring the target of the investigation is innocent.
For nearly two years, Pat has advised Jared Kushner on crime, punishment, and reform. I recall once when Pat was at the White House, seated next to the president’s son-in-law as Jared presided over a working session with key experts on prisoner rehabilitation.
I was thinking then that President Donald Trump is actually doing what President Barack Obama only talked about — reforming our broken criminal justice system. And yet, President Trump — as Rodney Dangerfield would say — “gets no respect.”
And then I thought about the criticism of President Trump’s bold views on pardons and his “working outside the system.” But isn’t that what the president, as a kind of check and balance on the system, is supposed to do? That’s what our nation’s founders envisioned, the president as a “last resort” for victims of an all-powerful central government. If Trump were a liberal Democrat, the ACLU would be applauding his independence, his challenge of the inbred enforcement/prosecution/prison complex.
Indeed, the criminal justice complex is, by wide consensus, broken, incestuous, even corrupt. But just as most cops are good cops, there are mainly honest, dedicated, and competent people in the Department of Justice who properly and fairly prosecute crooks, some of whom are politicians. But the terrible abuses within the DOJ must be corrected. And significantly, the DOJ, which is supposed to review pardons, has become the guardian of the status quo, not an impartial, disinterested party. Thus, in many cases, for the DOJ to recommend a pardon in a case in which the Feds acted unethically, the DOJ must at least implicitly accept responsibility for its own dishonest investigative practices and its own prosecutorial misconduct — which mea culpa is highly unlikely.
The DOJ does have an Inspector General. This independent watchdog’s investigations actually faulted former FBI Director James Comey’s misconduct and later led to the dismissal of FBI Deputy Director Andrew McCabe, whose successor yesterday fired the also-conflicted and troubled FBI agent Peter Strzok. Perhaps the DOJ also needs an independent “Director of Pardon Review” who will not obfuscate, alibi, rationalize, or even cover up, or otherwise try to justify past DOJ tawdry investigations and tainted prosecutions.
That’s why President Trump is right to continue to exercise a truly independent review of major miscarriages of justice. And I know of one righteous and long overdue pardon that would not be controversial, but lauded by liberals and conservatives, and by the many good people in law enforcement and send a powerful and noble message.
Pat Nolan should be invited back to the White House to receive a presidential pardon.