We've noted that although the fall of Governor Spitzer removed a powerful man who had perfected the art of destroying other people without evidence of any crime having been committed, the manner of his going is profoundly disturbing. His experience shows that any one of us can be destroyed in the same way Spitzer was destroyed, whether we've committed a crime or not.
As a prosecutor, his technique was to accuse a business or a highly visible person with a crime, reap publicity and name recognition, and move on. He rode the publicity he gained into the governor's office which is bad enough, but the same process later destroyed him.
Politicians usually don't like to destroy each other; the fact that a wealthy, powerful man like Spitzer could be hounded out of office shows that none of us are safe. The New York Times reported on March 21 that the Spitzer investigation was unusual:
The scale and intensity of the investigation of Mr. Spitzer, then the governor of New York, seemed on its face to be a departure for the Justice Department, which aggressively investigates allegations of wrongdoing by public officials, but almost never investigates people who pay prostitutes for sex.
What's most surprising about his downfall is that he was a Democrat. Most media assume that only Republicans get enmeshed in sexual issues, and the NY Times noted that the justice department "almost never" spends resources investigating prostitution.
Even the National Organization for Women said there was nothing wrong with Mr. Clinton treating women shabbily because "He's right on the issues."
Governor Spitzer didn't invent his methods of abusing prosecutorial power for personal gain although he took it to new levels of injustice. Disbarred Durham County District Attorney Mike Nifong charged the Duke University lacrosse players with rape partly to help win an upcoming election. The only reason his fraud came out was that his victims' families believed their sons and mortgaged their homes to hire investigators and lawyers to get at the truth.
The fact that Mr. Nifong was disbarred and Mr. Spitzer was forced to resign in disgrace won't stop ambitious prosecutors abusing their powers to win publicity. This is because our government has deteriorated to the point that most government employees are much more concerned with benefiting themselves than with serving the people.
Large portions of our justice system are sliding into the abyss of the Confucian Cycle. Thousands of years ago, Confucius pointed out that government employees, being as human and you and I are, want to increase their pay, reduce the amount of work they have to do, and generally benefit themselves rather than work to benefit society. Many employees of our law enforcement agencies have lost interest in justice and are working to benefit themselves.
The FBI noticed Gov. Spitzer because his bank told the FBI that Mr. Spitzer had been spending some of his own money. The FBI put an unusual amount of resources into the investigation and followed the money to the hooker.
The rules requiring banks to tell the FBI whenever you spend your own money were put in place to help track money which could be used for terrorism. The bank doesn't need any evidence that you're a terrorist, or even that you have any illegal intent; your bank is supposed to rat on you whenever you spend a certain amount of money.
Rush Limbaugh got caught in the same snare when he tried to use his own money to buy pain-killers to which he had become addicted during episodes of severe back pain. We've noted elsewhere that such drugs ought not to be illegal; our drug laws cause a great deal of suffering for people who have chronic pain. Our courts have ruled that sick people do not have a right to buy the drugs they need unless the bureaucracy has blessed the drug; our courts think that our bureaucrats know more about what drugs you need than you or your doctor know.
Mr. Spitzer's fall and Mr. Limbaugh's troubles are symptoms of our "justice" system gone awry. In the old days, persons accused of a crime were considered innocent until the government had proved them guilty. Today, our legislators have passed so many laws that just about all of us can be found guilty of something; perhaps we're guilty of running out of toilet paper.
There are tens of thousands of prosecutors working for the various federal, state, and local departments of justice, and they all need something to do. The justice department ranks lawyers by how much jail time they're able to inflict.
The department doesn't care, as an organization, whether the accused are guilty or innocent; their staff evaluation system keeps track of whether people go to jail and for how long because that's easy to measure. Certainly there are individual lawyers and judges who care about actual justice; but the system doesn't because doing justice doesn't pay off in terms of increased budgets or promotions.
Our justice system has been abandoning the pursuit of justice in favor of personal gain for a long time. I saw this in 1989 when the police took four children from friends of mine on false charges of child abuse. My friend's mother-in-law got angry and spouted a wild tale; the cops didn't like him because he always voted against buying them new toys at town meeting and were glad to swoop down on him.
He ended up spending more than his net worth on lawyers. He got his children back after his youngest child suffered two broken arms and became infected with worms while in state custody and his marriage was placed under great strain. Financially, he never recovered.
Some years later, my employer was railroaded into jail by the government because the Navy didn't want to pay termination fees for ending a contract. His story illustrates how you can protect yourself if the government ever starts asking you questions.
In the late 1980s, the USS Stark was nearly sunk by an airborne missile and the USS Vincennes shot down a civilian airliner by mistake. In both cases, crew training turned out not to have been realistic enough. My company won the contract for a new trainer.
Unfortunately, the contract was supposed to have gone to a larger firm which had promised to hire the contracting personnel when they retired from the government. Earmarks had not yet been perfected, so the bureaucrats couldn't just give the money to their friends. They had to award the contract based on competitive bidding. My company won the contract fair and square; they had no choice but to give it to us.
We didn't find out that we weren't supposed to have won the contract for a year or so. We were frustrated by the fact that the government stalled instead of providing the data we needed to model the various weapons, ships, airplanes, bombs, and other items the students had to learn to use.
At the time, I had not fully applied what I knew of the Confucian Cycle to the U.S .Government; I made the mistaken assumption that the contracting office actually wanted to bring the project to a successful conclusion and deliver a quality trainer to the Navy.
I did not realize that they didn't care whether the trainer worked or not, they wanted the money to have gone to their friends so they could have good jobs later. We saw a very similar situation recently with the Boeing airborne-tanker contract; fortunately, that fraud was visible enough that Sen. John McCain personally was able to put the kibosh on it.
Unfortunately for us, President Reagan bankrupted the "Evil Empire" by funding Star Wars at a level the Soviets could not match. Our trainer wasn't needed any more because it had been intended to teach blue-water fleet combat, not the sort of conflicts we're in now. The contracting office didn't like us anyway because as they saw it, we'd taken "their" money, so they used the changed world situation as an excuse to terminate our contract.
The contract stated that the government could terminate the project at any time, of course, but it also called for termination payments. According to the contract, the government owed us about $8 million. They refused to pay; we filed a claim with the Contract Board of Appeals, a court-like system which is supposed to resolve conflicts more cheaply than suing in a real court.
The Contract Board of Appeals requires that the contractor supply information to the government and that the government supply information to the contractor. One of the exhibits we got from the government was a Power Point which showed that they might owe us as much as $11 million. We thought we were in decent shape to win our case.
It was a year or so before we got to the board. As our hearing master gaveled the session to order, a government employee entered the room and told the group that the US Attorney had indicted my boss for fraud in connection with the case. The hearing master noted the strange coincidence with respect to timing, but he had no choice but to suspend the hearing.
We found that the Justice Department not only ranked their lawyers by how much jail time they got, they gave extra points for helping another government agency. Rudy Guiliani had not yet shown everyone how to get elected mayor by bringing headline charges, but our US Attorney wanted to be moved to DC as a reward for helping the Navy; he thought he had a chance to shine even though no fraud had been committed and there was no evidence of any.
I had another friend who'd worked on the contract as a consultant. He knew how to protect himself from law enforcement. He was a 3rd-generation Japanese-American who'd been born in a Wyoming concentration camp during WW II.
Our government had rounded up his parents. They met and married in the concentration camp; he was born there. This gave him a somewhat cynical view of Superman's concept of, "truth, justice, and the American way."
When the government's lawyers asked him to testify, he refused to tell them anything until they wrote him an "immunity letter." He explained how the government works.
"You go before the Grand Jury and you testify under oath," he told me. "It's perjury if you don't tell the truth. This is a complicated mess, nobody can remember everything. They go over your transcript with a fine-tooth comb. If they find something they don't like, they tell you that some of what you said doesn't agree with something else they have. You either stick with what you said and they hammer you, or you agree that you might have missed something. At that point, they gotcha. They can charge you with perjury which means jail. Then they bend your testimony to get whatever they want. If you complain, you go to jail."
He explained that the letter granted him immunity from any and all charges coming out of whatever he said. That protected him from their manipulating his testimony and kept them from bringing pressure by threatening him with new charges. "How did you get them to give you the letter?" I wanted to know. He said:
"When they first called, I asked them if I was a target, a suspect, or a witness. They told me I was a witness, so I asked for the letter. They said they'd subpoena me and force me to talk. I asked them how long they expected me to be on the stand. They told me a half-day or so. I told them they better get ready for two or three days. They asked 'Why?' Because, I told them, every question you ask me, including my name, I'll take the 5th amendment. The only way you can break the 5th is for the judge to grant me immunity for whatever I say in answer to that question. So I answer. You ask me another question, I take the 5th, you ask the judge to grant me immunity, and so it goes. Get ready for a long session. The grand jury will get bored."
He also explained what he'd said when they asked him how giving his name could incriminate him. The US Census Bureau claims that all answers are confidential. "But during WW II," he told me, "the Census Bureau gave the Army the names and addresses of people with Japanese names or who lived in Japanese neighborhoods. So much for government promises of confidentiality. My parents were incarcerated because of their names; they could have been locked up because of their addresses. I explained that I could and would legitimately take the 5th on my name and on my address and on anything else they asked me. So they gave me the letter."
When the government called me before the grand jury, I asked for, and got, the same immunity letter and proceeded to tell the truth, the whole truth, and nothing but the truth, without worry about getting caught up in the government's political games.
The Economist has published an article
There may be a glimmer of hope for Jeffrey Skilling, the former chief executive of Enron who is now serving a 24-year jail sentence for his part in the his company's collapse. On March 14th, evidence emerged that government prosecutors may have misled the court and Mr Skilling's defence team about the content of interviews with key witnesses, including Andrew Fastow, Enron's former chief financial officer.
Mr. Fastow's testimony was crucial in convicting Mr. Skilling of fraud; he provided the only direct evidence that Mr. Skilling might have known about the fraudulent transactions which led to Enron's collapse.
Mr. Skilling's attorneys persuaded the court to order the FBI to turn over the original notes of their interviews with Mr. Fastow. Somehow, the interview summaries which were provided to the court and to the defense team favored the government far more than the original interviews.
Mr. Fastow was a suspect from the beginning; there is no way he could have gotten an immunity letter as a condition of testifying. The Economist suggests an explanation why his testimony might have evolved to become more and more favorable to the government the longer they talked to him:
... he had a powerful incentive to come up with a story that helped the government convict Mr Skilling: by cooperating, and entering a plea bargain, Mr Fastow was sentenced to only six years in jail.
The Economist explains why courts should never tolerate this sort of misconduct on the part of the government:
Mr Skilling's defence team allege serious prosecutorial misconduct of the sort that ought to result in Mr Skilling's conviction being overturned, with no possibility of a retrial. Brady v Maryland held that the government had to provide the defence all favorable evidence. That is because the government has "substantial resources and considerable other advantages" over defendants and the "system reposes great trust in the prosecutor to place the ends of justice above the goal of merely securing a conviction." [emphasis added]
The injustices perpetrated by Mr. Sptizer, Mr. Guiliai, and Mr. Nilfong confirm that we can no longer trust government prosecutors to "place the ends of justice over the goal of merely securing a conviction." That's why you can't cooperate with any investigation unless they protect you by writing you an immunity letter.
The most important thing to ask is whether you're a suspect, a target, or a witness. If you're a suspect or a target, they won't give you immunity unless you promise to rat on someone else whom they'd rather convict than you; that's how Mr. Skilling got 24 years while Mr. Fastow got his 10 years magically reduced to 6.
They can give you a letter if you're a witness, but they'd rather not because immunity makes it harder for them to pressure you into testifying the way they want. Remember, they don't care whether the target is guilty or not, all they want is jail time to make themselves look good.
"But," you say, "don't some lawyers care about justice?" Maybe, but a) you can't count on getting one and b) the ones who do care about justice don't get credit for as much jail time, so they don't get good performance ratings. The good ones get passed over for promotion and leave for vastly more lucrative, but less powerful, private practice.
If you're a target or a suspect, the one and only rule is, "Shut UP! Anything you say will be used against you."
Some years before they started putting their articles on-line, Forbes magazine published "The White-Collar Gestapo," which explained that once an investigator spends a certain amount of time on a case, he has to get some jail time, any jail time, or he loses career points big time.
The article explained that most innocent people had the mistaken impression that they can clear it all up by explaining what happened. Forbes' advice - say nothing, especially if you're innocent. According to YouTube, Gov. Spitzer offered the same advice.
Martha Stewart went to jail for talking to the government. She was convicted for lying to investigators about something that turned out not to have been a crime at all. The same thing happened to Scooter Libby - the investigators knew that no crime had been committed when they talked to him, but he was convicted of lying about a non-crime because his memory differed from a reporter's account of their conversation.
If the "justice" people want you to be a witness, make them prove it. If they really aren't after you, they'll write you a letter of immunity, but without a letter, shut up.
The US justice department no longer serves society by promoting justice; it serves its employees by getting them publicity which they can use to get a bigger budget or get promoted or go on to higher office.
My boss went to jail for 6 months after spending over $1 million defending himself; the government paid $2 million instead of the $10 million their own documents showed they should have paid. The US Attorney lost points because he had told Janet Reno that he had a racketeering case which could be good for 150 years. Getting only 6 months of jail time after such an extravagant promise cost him a promotion cycle or two.
A few months after he left Club Fed, my boss got a call from an Army general. After a few minutes of talking to no purpose, the general told my boss that the contracting office with which he had been dealing had been moved from Navy jurisdiction to an Army command. Being told that the Navy had been punished by losing budget and staff was the only apology he could expect.
The bottom line is that when any law enforcement agency wants you to tell them anything, either get a letter of immunity or shut up. If she'd shut up, Martha Stewart wouldn't have gone to jail.
If he'd shut up, Scooter Libby wouldn't have been convicted of lying. Law enforcement no longer has anything to do with justice, all that's left is budget, power, and personal promotion - so it's wisest to keep your head down and watch your step.
Fortunately, our Founders were wise enough to give us certain protections if we're wise enough to use them. The famous Miranda warning is not just something you hear on TV; they're not kidding when they read you your rights. Your rights are there for a very good reason. If you choose to give up your rights, the consequences may be dire.
Everybody knows the Miranda warning. What you probably don't know is that it applies to witnesses as well as to suspects. The government doesn't care whether you're guilty or not; they get the same points for jailing an innocent person as for jailing someone who's guilty. Putting innocent people in jail is easier in some ways because an innocent person still has faith in the system and is more willing to talk.
The problem is that every legislator wants to get noticed so that he or she can run for higher office. That's why a lawmaker in Florida tried to pass a law regulating the toilet paper supply in restaurants. This guy doesn't care whether regulating toilet paper is a legitimate concern of government; he wants publicity.
The same mechanism has led to our insane proliferation of laws. Whenever anything happens, Senators and Representatives call hearings with press conferences, vow to "do something about it," and pass more laws. With more and more laws on the books, we're all guilty of something. How many of us can be confident that we've filled out our tax returns correctly, to name but one example?
This is precisely what Confucius predicted thousands of years ago. He said that once the bureaucracy lost the idea of looking out for the welfare of the people, once government employees start looking out for themselves, society suffers. As the politicians write more and more laws, as they steal more and more money, government overhead goes up and society becomes less efficient.
At some point, government costs so much money that the there isn't enough left to run society, and society collapses.
Regardless of which party is in power, the government share of GNP keeps going up. We're to blame because we keep re-electing the same set of thieves. This election cycle, just vote against every incumbent. If we keep un-electing them when they steal our money, they'll eventually catch on and stop doing it.
But if we keep re-electing the same crooked crew, we've no one to blame out ourselves when it all falls apart.