Harvey Silverglate - Conviction Machine; Standing up to federal prosecutorial abuse

CONVICTION
MACHINE

2020 by Harvey A. Silverglate and Sidney Powell

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First American edition published in 2020 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax exempt corporation.
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Manufactured in the United States and printed on acid-free paper. The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.481992
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FIRST AMERICAN EDITION

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Names: Powell, Sidney K., 1955 author. |
Silverglate, Harvey A., 1942 author.

Title: Conviction machine : standing up to federal prosecutorial abuse / Sidney Powell, Harvey A. Silverglate.

Description: New York : Encounter Books, 2020. |

Includes bibliographical references and index. |

Identifiers: LCCN 2019025112 (print) | LCCN 2019025113 (ebook) | ISBN 9781594038037 (hardcover) | ISBN 9781594038044 (ebook)

Subjects: LCSH: ProsecutionUnited States. | Public prosecutorsUnited States. | Criminal justice, Administration ofUnited States.

Classification: LCC KF9640 .P69 2020 (print) | LCC KF9640 (ebook) | DDC 345.73/01262dc23

LC record available at https://lccn.loc.gov/2019025112

LC ebook record available at https://lccn.loc.gov/2019025113

CONTENTS

PREFACE

Appalled by the terrible injustices she had recently witnessed in our federal courts, Sidney Powell, a former federal prosecutor, published Licensed to Lie: Exposing Corruption in the Department of Justice in 2014. Powell did not want to write Licensed to Lie. She was compelled to do so. The book reads like a legal thriller, but sadly its true, and it names the very powerful people who promoted their own interests by abusing their powers as federal prosecutors. They made up criminal charges, hid evidence, and lied to judges to win convictions. In the process, they destroyed companies, jobs, families, careers, and lives, contributing to an erosion of Americans faith in our criminal justice system, while simultaneously propelling themselves to positions of great power and prestige in the government and in private practice.

Americans have recently witnessed the perhaps unprecedented abuse of our federal law enforcement agencies, especially the FBI and the Department of Justice, to target the opposition political candidate, morphing into an effort to cripple President Donald Trump upon his unexpected election in 2016. In the process, the FBI and the special counsel, Robert Mueller, targeted not only the president but his closest associates and advisors, looking for anything that might be pinned on them. But the long-awaited Mueller Report found no collusion between Russia and anyone in the Trump campaign, and it did not recommend prosecution for obstruction of justice. Evidence is coming to light by the day revealing that the entire Russian collusion and obstruction narratives were a concoction of the political opposition and high-ranking officials in what used to be our most trusted (at least by many) law enforcement institutions. However, abuse of prosecutorial power is hardly a partisan phenomenon. It is systemic.

Eighty years ago, Attorney General Robert H. Jackson warned against this very abuse of power. He spoke to all the United States attorneys assembled before him in the great hall of the Department of Justice. In 1940 the world was in turmoil. It was a dark time, but his words are still inspiring to those of us who believe in the rule of law.

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.

He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizens friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.

He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.

While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing donewanted crime eliminatedbut also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.

Although the government technically loses its case, it has really won if justice has been done.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.

Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.

In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realmin which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular

The ability of prosecutors to pin some offense on anyone they choose is the subject of Harvey Silverglates book Three Felonies a Day: How the Feds Target the Innocent (2009/2011). As Silverglate demonstrated, the average busy professional going about his business will unknowingly commit three felonies in a normal day because there are so many criminal laws in the code. Through statutory analysis, case law, and the experiences of criminal lawyers defending cases across the spectrum of federal statutes, he showed how federal agents and prosecutors are able to prosecute virtually any person and any undertaking or transaction on felony charges. The feds need only to target somebody who has become an object of prosecutorial interest for any reason whatsoever: The target may be wanted as a witness against a bigger target, or the prosecutor may decide that landing a big fish would be good for his or her career, or the target might operate within an area designated as a priority area of prosecutorial interest in that district.