The FBI announced today that Hillary Clinton will not be indicted for any charge — not even a misdemeanor charge — related to her use of unsecured personal servers for storage of classified government materials.
In an age of aggressive government prosecution, the casual treatment of Clinton's alleged crimes by the FBI will no doubt raise the eyebrows of those who keep tabs on the rising tide of federal prosecutions against ordinary people like Aaron Swartz and white collar "criminals" like Martha Stewart or Mark Cuban for made-up crimes such as insider trading or "making false statements" to government employees.
Federal prosecutors have become so aggressive in recent decades, in fact, that it's now become nearly routine to witness government prosecutors threatening, coercing, and intimidating ordinary people who run afoul of the Justice Department. Last year, Michael N. Giuliano wrote at mises.org in "The Problem with Government Prosecutors":
Those encountering the prosecutorial buzzsaw within the United States are of many backgrounds. Unrestrained prosecutorial authority pressed hard against Aaron Swartz from 2011 to 2013. Swartz, then a former Harvard fellow, programmer, and internet freedom activist, committed suicide in January of 2013. A relentless smear campaign by the prosecuting U.S. Attorney set in motion Swartz’s life-ending spiral. Accountability, if it ever comes, is late, as in the 2006–2007 case of prosecutorial abuse involving lacrosse players at Duke University. In the well-known case of Edward Hanousek, a construction supervisor was criminally charged with the negligent actions of subordinates while he was off-duty.
The politically connected are not immune from nefarious treatment. A lengthy fishing expedition lacking a fig leaf of justice led to repeated attempts to prosecute former Alabama Governor Don Siegelman. He was convicted of bribery largely due to the testimony of a single witness threatened by prosecutors.
The law extends qualified immunity to prosecutors and effectively bars meaningful recourse by the maliciously prosecuted. Furthermore, the ubiquity of plea bargaining ensures that dubious charges go unchallenged.Professor Bennett Gershman has described the accretion of power by prosecutors as having gutted the adversarial legal system.
In practice, federal prosecutors have immense power when it comes to bringing charges. When Judge Sol Wachter coined the now-famous saying about a grand jury being able to "indict a ham sandwich," he was speaking of how state district attorneys enjoyed far too much power. Federal prosecutors make state prosecutors look restrained in comparison. William Anderson wrote in 2005:
What we see here is that the federal system has become a legal system that exists of the prosecutors, by the prosecutors, and for the prosecutors. When Rudy Giuliani, then the U.S. attorney for the Southern District of New York, remarked that the Crime Control Act of 1984 tilted the playing field in favor of prosecutors, he was not exaggerating. A legal system that at its founding was set up as a mechanism to ensure rights of the accused has become a system of guilty pleas and show trials, and is more akin to what Stalin enjoyed in the U.S.S.R. than what George Washington, Thomas Jefferson, and the great William Blackstone helped create more than 200 years ago.
Among those without sufficient enough political clout in the White House, though, federal prosecutors can generally indict whom they please, and even if the federal government fails to obtain a guilty plea or a conviction at trial, federal prosecutors know they can bankrupt anyone they choose to target. This is why guilty pleas as part of plea bargains have been growing, and are now up to 97 percent. Almost no one can afford the type of legal defense billionaire Mark Cuban needed to be acquitted in federal court.
And who can take seriously the FBI's claim today that they were unable to find what they needed to proceed with an indictment? Such considerations have rarely proved to be a problem for federal prosecutors. Writing on the enthusiasm of federal prosecutors when it comes to the private sector, William Anderson wrote last year:
When famed civil liberties attorney Harvey Silverglate published his now-famous book, Three Felonies a Day, it caused quite a stir. Going through a number of very disturbing cases, Silverglate made clear that if federal prosecutors want to target an individual, it is very easy to fashion criminal charges against them.
To prove his point, he noted how the federal prosecutors in New York when Rudy Giuliani was US Attorney for the Southern District of New York regularly played a game in which they would see if various celebrities and others, including Mother Theresa, had broken federal criminal law. The result, unfortunately, was that for each person no matter how good his or her public character, a federal statue existed that would place them in prison.
Being that Giuliani’s prosecutors — and Giuliani himself — regularly committed felonies by selectively leaking grand jury information to favored journalists in order to damage the ability of accused people to defend themselves. He also did it to stoke the fires of the anti-business mobs, and these prosecutors were quite familiar with how to fashion the ever-malleable federal statutes to turn ordinary acts into crimes. During the 1980s, when Giuliani was at DOJ, the New York office engaged in a massive show of force against Wall Street firms and other business enterprises in large part to enhance the coming political careers of Giuliani and others who worked under him, and to appease the anti-business Democrats and Republicans who were anxious to declare to roll back what they called the “Decade of Greed.”
When it comes to locking CEOs and wealthy private-sector people — not to mention the poor and defenseless — in prison, there is no obstacle too large for the FBI to steamroll over. Given the low bar set for evidence in federal court, it's hard to image how a federal prosecutor could not manage to come up with the evidence needed to proceed with a lengthy and expensive trial for the defendant. Certainly, no expense is ever spared when prosecution is politically expedient. When the target is a high-ranking member of the government class, however, then only the most delicate treatment will do.
