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Rush’s Long Nightmare Is Over
A shameful investigation comes to an end.


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Andrew C. McCarthy

A long, transparently politicized nightmare of an investigation is over for Rush Limbaugh today.

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Pursuant to an agreement Rush has reached with state prosecutors in Palm Beach, Florida, they are finally abandoning their two-and-a-half year quest to criminalize a human tragedy–addiction to medication prescribed because of severe pain.

Unlike most of us, who get to keep our private struggles private, Rush’s celebrity ensured that his would be played out publicly. With characteristic candor and humility, he admitted he had a problem. And he did it in a way that is rare today, although one that came as no surprise to those of us privileged to know Rush. He took real responsibility.

He didn’t pretend to be a victim. He didn’t blame anyone or anything–not even the pain. Instead, he forthrightly acknowledged what he regarded as a personal failing, although most of us would aptly see it as a common trap for those with painful medical conditions. Equally important, he didn’t just talk about his problem. He dealt with it, continues dealing with it, and is overcoming it.

From day one he has maintained he is innocent of any crimes. That assertion has stood the test of time, and it stands today as this shameful investigation ends.

We are former federal government attorneys. We’ve collectively spent decades in law enforcement and believe passionately in its professional, non-political, non-partisan mission. Thus, it’s with outrage that we note that, rather than quietly dropping this embarrassment of an investigation, the state attorney, Barry Krischer–a politically active liberal Democrat–has insisted on filing a charge which he well knows will never be tried. Insisting, that is, on further media churning of an allegation of doctor-shopping that he’ll never prove.

Rush is entering a plea of not guilty. The case will be dismissed in 18 months, when Rush completes the treatment he undertook on his own. There is no reason to file a charge that is without foundation and will never result in a judgment of conviction. But, under Florida procedures, this means a person is “processed.” That is, by this petty maneuver, Krischer has arranged for a mug shot of Rush Limbaugh.

Krischer ought to be ashamed of himself, and the people of Palm Beach County ought to be frightened by what passes for law enforcement in their neck of the woods.

How many people do we know of–and how many celebrities can we name in sports, entertainment, politics, etc.–who develop substance-abuse problems? And in most instances the abuse is recreational, not an unintended fallout from treatment for real medical problems. Yet our society does not pursue these folks as criminals. They are treated with compassion. When they seek treatment, they win our admiration. And rightly so.

But not in Palm Beach County–at least not if your name is Rush Limbaugh. The state attorney’s office spent thousands of man hours and hundreds of thousands of taxpayer dollars pursuing not a drug dealer, or a money launderer, or a real criminal–although scurrilous innuendo to that effect was leaked to the Florida press from time to time, thanks to the shameful manner in which this prosecution was run. No, those resources and taxpayer dollars were expended by a politically partisan and ambitious prosecutor to go after a celebrity with a medication addiction.

That’s not what happens in a professional law-enforcement office. In the hundreds of such offices across the country, dedicated men and women figure out what actual criminal activity threatens their communities and marshal their sparse resources against those threats. (Rush won’t brag about this himself, but we will: He has been a generous charitable supporter of those men and women, and particularly the families of those who have fallen in the line of duty, for many years.) In most places, the police have more than enough to do pursuing the drug traffickers who prey on neighborhoods. In Palm Beach, the state attorney apparently thinks funds that could have underwritten scores of law enforcement salaries and scores of serious cases are better spent harassing a good man who happened to have a common problem and happened to be a famous conservative.

We don’t like attaching the word “harassing” to the actions of a prosecutor. We’ve known too many honorable ones for that. But here, it fits to a tee.

Real prosecutors do not engage in selective enforcement. When they scrub the statute books and charge an unusual crime, it’s because they are faced with a unique case involving a truly dangerous person. But not in Palm Beach County. In county history, there apparently has been only one prosecution for doctor shopping–ever. Yet Krischer was so desperate for a mug shot, that’s what he came up with.

The truth is that Krischer never had a case. In November 2005, the assistant state attorney handling the investigation stood up in open court and made the mind-blowing admission that he had “no idea” whether Rush had committed a crime–after pursuing Rush, and crawling through every aspect of his private life, for over two years. He claimed he needed the court to authorize the evisceration of Rush’s doctor-patient privilege so he could interview physicians. Why? Because after months and months of poring over Rush’s actual medical records the prosecutor had no proof that Rush had done anything wrong. This should have come as no surprise since that’s what Rush had told them and shown them all along the way.

Nor did the harassment stop there. Rush was treated far differently from the average person at every juncture–but, of course, you already knew that because, as we’ve noted, the average person would not have been investigated for such a “crime” as doctor-shopping at all. For another example, real prosecutors are duty-bound to keep investigative information confidential. If they are ready to charge someone formally and back up the charges in court, fine. Otherwise, Americans are not supposed to be tried in the press. But Rush was the exception. His private medical records were splashed all over television once they were in the hands of the prosecutors.

Another example. People being investigated routinely retain lawyers. Those lawyers frequently interact with the prosecutors, for obvious reasons such as negotiating over demands for information. Those communications are supposed to remain confidential–again, real prosecutors put-up-or-shut-up in a court of justice; they know they are not supposed to tar people in the court of public opinion. In Rush’s case, however, state attorneys publicized their communications with Rush’s counsel. Worse, in this instance, they were actually given advice by the state attorney general and the Florida Bar Association advising them to seek a court’s permission before releasing such information–yet, they not only released it, they also misrepresented the advice they had been given.

Finally, in our criminal-justice system, it’s not the accusation that counts. We worked for the Justice Department for many years and can attest personally to something that is very well known: It is not difficult for a prosecutor to bring a charge. That truism was recently highlighted when another political state prosecutor, Ronnie Earle in Texas, obtained an indictment against Congressman Tom DeLay for actions that were not even chargeable as a crime under state law.

It is an American principle that a charge is only an accusation and stands as proof of nothing, because it is equally our heritage that people are presumed innocent until proven guilty. It is the result of a case that matters, not the mere allegation. What counts is whether the authorities are able to back up their allegation in a fair fight in front of a neutral judge and jury, with the assistance of counsel able to challenge the prosecution’s case (something that doesn’t happen when a grand jury is considering an indictment). For those reasons, responsible prosecutors, when they are not in a position to prove a charge, don’t smear someone by bringing a charge.

Again, Palm Beach is different. Even though no case against Rush will be pursued, the state attorney has insisted on bringing a single charge he has no intention of ever trying before a jury. He’ll get his mug shot. The charge will be formally expunged after Rush completes 18 months of treatment–treatment he was undergoing anyway and would have finished regardless of any action by the state.

And why, you might ask, wouldn’t Rush fight this charge? Well, he did. He fought this politically motivated investigation for several years; he spent millions of dollars in legal fees challenging the state attorney every step of the way; and he went to the airwaves repeatedly to discuss his legal battle. In the end, despite Krischer’s efforts, Rush continues to maintain his innocence–and he does so as a matter of law–by responding once again with not guilty to a phony doctor-shopping charge the state attorney is unwilling to take to a jury. He has admitted to no wrongdoing at all. And now, finally, it is Rush’s innocence that remains unchallenged as this sad chapter comes to an end.

Rush is a decent, generous, honorable guy who has been dragged through the mud, at great personal embarrassment, solely because he is a conservative icon. When he wakes up tomorrow, he’ll still be a conservative icon. And Barry Krischer will still be a disgrace.

Andrew C. McCarthy, a former chief assistant U.S. attorney in New York, is a senior fellow at the Foundation for the Defense of Democracies. Mark R. Levin, a former Justice Department attorney and chief-of-staff to U.S. Attorney General Edwin Meese, is president of Landmark Legal Foundation.



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