Harvey Silverglate has slapped me silly and forced me to see just how wrong I am. His Three Felonies A Day: How The Feds Target the Innocent, is a tale told from the trenches by a white collar warrior worthy of any courtroom. It may well be that the threat to liberty is greatest in the world of white collar crime, where prosecutors armed with vague laws, investigative grand juries and infinite resources can crush virtually anyone, regardless of whether the person has committed a crime.
Silverglate practices in Boston and writes a column for The Boston Phoenix; he is a sixty-something lawyer and litigator who managed to survive Harvard Law School without losing a taste for street smarts. I've never met him, but his photograph on the dust jacket of the book bears an uncanny resemblance to Robert Fogelnest, former president of the National Association of Criminal Defense Lawyers, and now an expatriate living in Mexico. Fogelnest is a good friend, so I suppose there is a danger that I read too much into Silverglate's feisty prose, but I don't think so.
Economic hard times make populists of all who struggle, and yield the temptation to indulge in a sort of populist dualism, separating the world in good and evil. The current bad guys are Wall Street bankers, those smarmy folks who packaged derivatives, traded them like baseball cards among themselves, exploited the Barnum-like quality in each of us that wants something for nothing, and then crashed the economy. We're enraged, most of us, that these banking bandits pulled this off and still got a free ride from the government. What a country: The rich get bailed out by Government and ordinary people are forced into bankruptcy.
It plays, doesn't it? This neo-populist rage slips easily off of my tongue. Tar and feather the leisure class, I say.
But not so fast. Silverglate warns against this sort of easy anger. It is the sort of thing the prosecutors use to fuel prosecutions of doctors, lawyers, businessmen, salesmen, bankers, virtually everyone who, in this complex and regulated economy of ours, sell goods and services under the watchful eye of the government. Each can be prosecuted on a whim; all of us are criminals when viewed through lenses tilted just so. In the world of white collar crime, mail fraud, wire fraud, obstruction of justice, become fall back crimes prosecutors can allege when all else fails. Many defendants chose to enter pleas rather than fight costly and expensive wars than might well vindicate them but at the expense of bankruptcy.
A friend recommended Three Felonies a Day when he learned I was representing a lawyer in an ongoing federal investigation. I told my friend how terrifying the investigation was. When questions were raised about one topic, I met with the feds. I provided documents that rebutted their suspicions that anything was amiss. They acknowledged that they did not know about the documents I showed them. I assumed that the case would be closed and all would return to normal.
How naive.
You see, the government wants to turn this lawyer into a witness against another lawyer. So they are sparing no expense to try to terrify my client. Federal agents have visited his neighbors, his favorite restaurants, his clients: The agents are behaving like organized crime goons, flashing badges and guns in an effort to scare up some evidence of any kind of wrongdoing that they can dream up. Why? They want my client to flip against someone who is the real target of their ire. There are reputations to be made in high-profile prosecutions, you see. The feds are trying to "climb the ladder," as Silverglate calls it, using my client as a rung. The trouble is, there is nothing for them to seize upon.
But they want their man. So they dog my client, sending almost daily reminders of their ability to root through all the electronic trash they can find: banking records, credit card receipts, old tax returns. They will press until they find something they can use as a club to bludgeon my client. All this with the aid of a secret grand jury, a body that was intended to protect liberty but not serves as the American equivalent of Stalin's secret police.
I've handled white collar cases before, cases involving government employees, bank employees and those alleged to have abused positions of trust. But, frankly, I did not see the political significance of each of these prosecutions clearly enough.
The defense of a crime of violence is challenging. Jurors are terrified by glimpses of a frightening world. Stepping across the divide separating law-abiding jurors and the blood and gore of the event alleged is difficult. Jurors look upon the allegations as they would upon a foreign culture.
But in white collar cases, there is no divide. When the government can accuse anyone of a crime and the crime is simply engaging in business, or taking advice from a professional, we are all potential defendants. The gap between juror and defendant is eliminated. What is evil now is not the blood on the murder weapon. No, what is evil now is the secret hand of a federal agent, lying, intimidating and insinuating his way into our lives. White collar work, Silverglate persuades, is one of the front lines in the battle against abuse of government power.
Silverglate radicalized me. There is no mob quite so dangerous as a self-righteous mob, and populism is the rage of the day. White collar defense is less the work of those who don't want to get blood on their lapels than it is a world in which spreadsheets and ledgers become the new Molotov cocktail. Reading Silverglate made me eager to get into the front lines and trade blows with a government all too ready to take without restraint.
Read Three Felonies a Day.
