Justice Goes After the GOP

My views on the Holder Justice Department’s ill-considered recent displays of prosecutorial overzeal and worse are set forth in my latest piece for the Wall Street Journal.

As always, I’d appreciate your feedback on the topic at hand and encourage you to either post a comment directly below the column on the WSJ’s website, or reach me directly at has@harveysilverglate.com. If you’d like to write a Letter to the Editor in response to my column, you can email wsj.ltrs@wsj.com.

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Gibson Is Off the Feds' Hook. Who's Next?

On July 30, I wrote a piece on my “Injustice Department” blog on Forbes.com discussing the narrow-mindedness of the Gibson Guitar Company CEO’s claim in a Wall Street Journal op-ed that the United States Justice Department is waging a war against capitalism. It is a war, I suggested, against many sectors of civil society.

Since that piece went up, Gibson Guitar has entered into a deal with the DOJ in which it sort-of admits guilt to alleged violations of the Lacey Act, pays a whopping fine, and will emerge without a criminal conviction in the end. Gibson took this step even though the company and its CEO earlier had publicly proclaimed their innocence. My latest piece, published in today’s Wall Street Journal, explains how corrupt plea-bargaining practices at the Department of Justice, as opposed to actual guilt, likely led to Gibson’s guilty plea and, most disturbingly, to its agreement to stick to a negotiated script with regard to the question of guilt versus innocence. As is increasingly true at the Department of Justice – via a process that has been gaining momentum since at least the mid-1980s – there is no longer a principled and discernible line between truth and falsehood.


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To the CEO of Gibson Guitar: It's Not Just a War Against Capitalism

On July 19, there appeared in the Wall Street Journal an interesting Op-Ed by Henry Juszkiewicz, the CEO of Gibson Guitar, claiming that a raid on his company’s facilities by federal agents is representative of a greater “war against capitalism.” Yet as my co-author Zachary Bloom and I argue in our latest piece for my Forbes.com blog, “Injustice Department,” Juszkiewicz’s Op-Ed suffers for being too narrow and self-focused. In reality, the raid on Gibson’s facilities is less representative of a war on capitalism than of a war on all of civil society, being waged by an out-of-control U.S. Department of Justice wielding vague laws passed by a Congress that clearly does not understand the consequences of its legislative actions, and regulations enacted by administrative agencies drunk with their own powers.

The article after the jump...


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Wall Street Journal editorial shines light on overcriminalization, statutory vagueness


Three Felonies a Day is front-and-center in an editorial in The Wall Street Journal today, "A Fewer Felonies Rule." Underscoring the need for more common sense in the federal criminal code, the editorial praises a bipartisan effort to require all bills to be reviewed by the Judiciary Committee, after a study found that some 450 new federal laws were created from 2000-2007, many of which lacked basic mens rea requirements.

In his book "Three Felonies a Day," attorney Harvey Silverglate describes how the proliferation of criminal statutes has made every American an unwitting felon. That's one reason some prominent legal minds want House Republicans to make a simple rule change to subject new criminal laws to greater scrutiny.

Read the full editorial here.

[End of post.]

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Citing Three Felonies a Day, Wall Street Journal columnist criticizes options backdating cases


What was once described as the business crime of the century has now become yet another series of questionable prosecutions, writes Wall Street Journal columnist Holman W. Jenkins in today's paper. Options backdating, described as a fairly meaningless violation of accounting rules, was once trumpeted as a serious defrauding of a company's shareholders. In response to this media-fueled fire, prosecutors indicted scores of executives. As has been made clear after a series of recent judicial rebukes, prosecutors often went to great lengths--including pressuring witnesses to tailor testimony to fit prosecutors' preferred version of events--to prove their case. Writes Jenkins:

Meanwhile, the larger lessons of the backdating furor were drawn in an epic piece in May in the American Bar Association's ABA Journal. By freelance reporter Anna Stolley Persky, the piece connected the dots between (among other things) the backdating witch-hunt, the tainted prosecution of Sen. Ted Stevens, and the government's use of the vague "honest services" statute to criminalize various kinds of behavior post hoc (a practice the Supreme Court finally curbed earlier this year).

One critique can be found in the title of a book by Boston defense attorney Harvey Silverglate: "Three Felonies a Day: How the Feds Target the Innocent." Mr. Silverglate believes that only a mobilization of "civil society" can stop what he calls rampant abuse of prosecutorial discretion.


Click here to read the full column on wsj.com.

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Updates related to Harvey's
book Three Felonies a Day, a critical
take on the Justice Department

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