Every week there are new revelations of the decrepit and often barbarous state of the U.S. criminal-justice and prison systems. The most egregious aspects of its dysfunction are not the absurdly severe sentences and world-record incarceration levels, or the North Korean conviction rates, or the frequent murders of prisoners by correctional officers in some of the state prisons, but the politically motivated antics of the prosecutors. I was one of those who warned of the criminalization of policy differences in the Watergate affair, but unfortunately the inexplicable and uncharacteristic mismanagement of the whole tawdry sequence of events by President Nixon made it relatively easy for his enemies to drive him from office. It was bound to be an intoxicating experience, and beneath the confected sanctimony of many of the Watergate principals in the media and law enforcement, the joys of the assassin were evident. Ben Bradlee, editor of the Washington Post, whose notes reveal that he distrusted Woodward and Bernstein’s Watergate reporting, was audibly rubbing his hands with glee at the prospect of going over the same ground again in the piffling Iran-Contra affair of 1986.
It was hard to resist the temptation to believe that the overreaction to President Bill Clinton’s peccadilloes was just tit for tat over Watergate. There were never grounds to impeach him, any more than there had been in the one previous impeachment of a president, Andrew Johnson’s in 1868, but, to adapt the metaphor of Mark Steyn, Air Force One got back to its hangar only with difficulty. The pursuit of Governor Don Siegelman of Alabama was always dubious, and the long persecution of the former House majority leader, Tom DeLay of Texas, has finally collapsed as the scandalous abuse of a partisan prosecution service that it always was. The infamous Ted Stevens affair has already been exposed as fraudulent withholding of evidence by the prosecutors, but only after the seven-term senator narrowly lost his bid for reelection and one of the prosecutors committed suicide. The protracted persecution of long-serving New York Senate leader Joseph Bruno has been another glaring example of the political corruption of the bench and the prosecutors. Most recently, the harassment of Republican governor Scott Walker of Wisconsin by the Democratic district attorney of Milwaukee, the pursuit of conservative commentator Dinesh D’Souza, the partisan indictment of Governor Perry of Texas for exercising his veto right, and the antics of the IRS (including the comically evasive and self-righteous appearances of IRS director John Koskinen at congressional hearings) demonstrate how resistless these prosecutors are against the temptation to use their unchecked powers for brazenly partisan ends.
In the assault on Governor Scott Walker, Democratic district attorney John Chisholm’s long-running criminal investigation of the governor and his entourage ended in 2013, and has been followed by a criminal investigation into the most prominent individuals and organizations that support the governor, expressing concern about improper collusion in support of the governor’s political, if not statutory, offense, which was to curb rapacious and irresponsible public-sector unions. This is a John Doe investigation (so called because it is a blind search into whether a crime was committed at all, and if so by whom — a procedure certain to lead to abuse). Nothing is said in public, except that evidence of the existence of the investigation is conveniently leaked, and the subjects cannot speak about it. Unfortunately for Chisholm, a longtime friend of his and his wife’s (she is a militant shop steward for the teachers’ union) brought forward extensive allegations of the political and spousally generated motives behind the investigations. One of the governor’s supporters, Eric O’Keefe of the Club for Growth, won a lift on the gag orders, and a suspension of the whole investigation by a federal court, claiming a violation of freedom of speech and a partisan political vendetta. This judgment was overruled the next day by the Seventh Circuit Court of Appeals in Chicago, on grounds that a federal court did not have jurisdiction in such matters. The redoubtable trial judge, Rudolph Randa, came back just as quickly and upheld the investigation again on grounds where he had a clear jurisdiction. The whole endeavor by Chisholm and his Democratic claque is a disgrace.
The Dinesh D’Souza affair is another straight political prosecution traceable to the accused’s acerbic criticisms of the present administration: He was dragged through a criminal trial on the trivial pretext of a minor violation of campaign-finance laws, a tenebrous jungle of layers of legislated self-interest through which even the most incorrigible specialist in the legal cartel has difficulty beating a path. At least the judge in this case had the decency not to imprison the defendant after, like 99.5 percent of American criminal defendants, he was found guilty, but he was sentenced to probationary community service and therapeutic counseling. There was nothing in the proceedings or allegations to suggest that D’Souza was in any need of such therapy, which is almost entirely useless charlatanism anyway. In a number of areas, the United States is drawing closer to the justice of totalitarian countries. The Soviet Union took to describing all designated wrongdoers as mentally ill, and the D’Souza sentence confirms this tendency in the U.S., where conviction rates are already equal to those of the Soviet Union and the numbers of incarcerated people at least equal to those of the Brezhnev-to-Gorbachev last phase of the USSR.
Another imitative feature has been the “allocution.” As 97 percent of the 99.5 percent found guilty are intimidated by the manipulation of the plea-bargain system into pleading guilty to spare the state the irritation of a trial, the defendants accept the abandonment of 147 of the 153 counts against them, plead guilty, and are rehearsed in a catechetical process by the prosecutors to accuse themselves of cowardice, hypocrisy, sociopathic turpitude, and often outright evil, and profess their gratitude for the sentence they are about to receive. It smacks of nothing so much as the Stalin system of torturing the innocent until, to spare their families, they proclaimed their guilt, fulminated an allocution of coruscating self-loathing and self-righteously bellowed their demand to be executed immediately, and were led away by Stalin’s obliging jurists, and often dispatched, mercifully in the circumstances, in the basement of the courthouse. (Successive secret-police chiefs were themselves executed by Stalin, or, in the case of the infamous Beria, by Stalin’s successors, in the only step they could agree upon before a rending struggle for power between themselves.) The United States certainly has not plumbed these depths, but the allocutions are just as nauseatingly excessive and obviously extorted by terror in sentencing — psychological, as opposed to physical, torture.
This brings us to the excruciating and horrifying saga of the Internal Revenue Service. It is clear, despite an administration effort to muddy the waters and strangle the congressional investigation, that the president and his party’s leaders in Congress launched a Herculean effort to bully the IRS to silence conservative organizations critical of the administration, and that the IRS, led by the head of the tax-exempt-organizations section, Lois Lerner, did its best to comply with this request. The extent of the collusion has been made difficult to fix with precision because Ms. Lerner’s hard drive disappeared and she has declined to answer congressional questions, exercising her right to avoid self-incrimination. No one believes that her e-mails vanished accidentally, but let us note the contrast between the complacency with which the Democratic national media have assimilated this news with the hysteria that followed the revelation that Rose Mary Woods, Richard Nixon’s assistant, had lost only 18 minutes of a Watergate tape. Because of synchronized IRS non-cooperation and the likely destruction of evidence, it is hard to be sure of the extent of the contact between Democratic eminences and the national tax collector, but the existence of many meetings and e-mail exchanges has been established. (New York senator Chuck Schumer had publicly urged the IRS to crack down on the “extraordinary influence” of the Tea Party and other Republican groups.) Ms. Lerner eventually took leave from her position and was accused of contempt of Congress. It is hard not to be contemptuous of the Congress, but that does not excuse refusal to answer amid the heavy suspicion of destruction of evidence.
President Obama installed John Koskinen, a “turn-around” expert from Fannie Mae, to clean up the IRS. But he has construed his role to be the obstruction of the congressional investigation, in appearances that were sanctimonious filibusters to explain the IRS’s conduct by standing on what he fancies to be his dignity and fuming with righteousness when the committee members suggested that he is not cooperating (which, of course, he isn’t). The administration’s own investigation has been a slapstick farce, largely led by Ms. Lerner’s chief associate in persecuting Republican political organizations, Jack Smith, now head of the public-integrity unit of the Justice Department. The administration is determined to kill the whole investigation, and there is little doubt that a thorough airing of the matter would show the conduct of much of the senior levels of the administration to be, to say the least, discreditable.
This is a justice system in which the conservative majority on the Supreme Court overruled lower courts and denied a man (John Thompson) the $14 million that lower courts had awarded him for spending 14 years on death row for a crime prosecutors knew he had not committed because of their possession of DNA evidence that they withheld (Connick v. Thompson, 2011). The bloated prison system, the unstoppable prosecutors, the entire legal cartel, and the slumbering higher bench, quiescent in the shredding of the Bill of Rights, have created a terrible problem that, even now, the country is largely ignoring. It is hard to imagine what new outrages have to occur before the public demands a restoration of America’s status as a society of reasonable laws, where a day in court is a reassuring thought for the innocent.
— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at firstname.lastname@example.org.