John Emshwiller and Gary Fields of The Wall Street Journal have been producing a series of front-page stories about overcriminalization in the United States, with a focus on vague and overbroad statutes, especially federal statutes. Their stories have highlighted an unfortunate basic fact about living in this country: the Department of Justice has an unconscionable number of laws at its disposal, and they know how to use and abuse them to target the innocent – many of the same themes I’ve covered in my “Injustice Department” series on forbes.com.

But in one of their recent articles about the DOJ’s practice of bringing “false statements” prosecutions, they failed to discuss the most important—and most pernicious—aspect of the feds’ use and abuse of the false statement statute. These false statements prosecutions must be understood in conjunction with the FBI’s deliberate policy not to record their interrogations and interviews of targets and of witnesses, and to instead rely on agents’ “Form 302” reports to supposedly document interviews. The result is a truly corrupting and terrifying combination, and helps to explain the problem Emshwiller and Fields highlight.

You can find a link to our article here: http://www.forbes.com/sites/harveysilverglate/2012/04/18/what-the-wall-street-journal-missed-about-false-statements-made-to-the-fbi/

On July 16^th of last year, Subramanian Swamy, a longtime summer session professor of Economics at Harvard University, wrote a scathing op-ed in an Indian newspaper advocating radical political changes in response to the Mumbai terrorist attacks three days previous. While many members of the Harvard community were upset by Swamy’s suggestions—which included the replacing of Muslim holy sites with Hindu ones, and the denial of voting rights to those who do not concede India’s Hindu heritage—Harvard’s administration at first stood by their economics professor in the name of academic freedom. But the faculty found another way to get rid of ideas they deemed unacceptable; in an unprecedented maneuver, the Faculty of Arts and Sciences re-labeled Swamy’s speech “incitement” and voted last month to strip his course from the Summer School catalogue, a de-facto firing. The maneuver – to de-list a course from the catalogue as a way of effectively firing (without formally firing – a power that the faculty does not possess) a politically incorrect faculty member – is worthy of Machiavelli, but unworthy of a liberal arts institution of higher learning.

As a graduate of Harvard Law School and as someone who taught a course there in the mid-1980s just before the current censorial atmosphere took root, I wrote this piece with considerable sadness. On Forbes.com, I argue that the Harvard faculty’s move should come as no surprise, but rather fits into a decades-long and unfortunate pattern of censorship at the university. 

Rod Blagojevich was sentenced on December 7^th (Pearl Harbor Day!) to 14 years in prison. I argue in my latest “Injustice Department” piece at Forbes.com that Blagojevich was a victim of an ever-expanding federal prosecutorial apparatus. He violated no state laws, and yet found himself under the thumb of a prosecutor citing vague federal statutes. The result was Blagojevich’s having been found culpable for behavior that was not criminal, and that he had no reason to think would be construed as such. In the run-up to his sentencing where the trial judge played his assigned part in a morality play enabling unjust federal prosecutorial power, and in a last desperate attempt to lessen his punishment, Rod Blagojevich admitted responsibility. But he admitted to having committed what I deem to be non-crimes. And if a new congressional bill—the “Clean Up Government Act”—gets enacted into law, we will see a great many more unsuspecting local politicians finding themselves in the crosshairs of  an overzealous and unjust federal criminal justice system.  Today it is the pols in the DOJ’s crosshairs; tomorrow it can readily be all of us (indeed, it pretty much is already).

Sometimes we can even be thankful for tobacco companies. On November 7^th, Judge Richard Leon enjoined the FDA from enforcing new regulations which would force tobacco companies to emblazon their cigarette packages with graphic images depicting the worst ravages of diseases caused by smoking. While we are hardly fans of smoking tobacco or the companies which sell cigarettes, as my research assistant Daniel Schwartz and I write on Forbes.com this week, the tobacco companies were absolutely correct in their objections, and Judge Richard Leon’s decision represents an important reminder that the First Amendment guarantees us not only the right to speak, but also the right NOT to speak (and, in particular, the right not to parrot the government’s preferred point-of-view).