Making changes sub rosa. If the court is going to make a change that actually changes the meaning of what was initially announced it should have an obligation to make that clear with some kind of supplement. [inaudible question] thank you, professor, for your presentation and your work. I was struck most of all for the freedom of speech in a deposition of the court in Citizens United. And i believe that the criticism about the individual judges raised a more profound question, and that is the as american democracy turning into a plutocracy, is the court a reflection of that kind of change . Well, some think it is a partial cause of that kind of change. Others think it is a reflection. I think it is more complicated ultimately than that. The reason that the court rules as it does in Citizens United is not a belief in that Corporate Power and wealth should dominate our society but a belief that government cannot be trusted to decide whose voices should carry weight. It is an antigovernment decision much more than a procorporation or plutocratic decision. It is in that way somewhere between anarchy and libertarianism. It is and mistrust of government. Similarly, many of the courts decisions making it easier for businesses to prevail over individuals reflexed, as i try to show and the book, not so much a bias in favor of big business as a mistrust of litigation and of the trial process as a way of solving problems. When you focus on what it is that drives the justices, motivates them, that may give us a better idea of what kinds of questions to ask and what kind of things to look for in the background of the next set of justices who will come along when some of those who are aging and, as it were, leave the court. [inaudible question] the mistrust of the government. I think it is much more than mistrust of government than trust of Corporate Power. In fact, the court has said you can make corporations disclose fully all of their contributions instantaneously. You cant reform the structure of corporations to make it easier for shareholders to hold them to account. You can do all kinds of things. And as some of the justices pointed out in Citizens United it is the momandpop corporation, the tiny corporation, the subchapter s, not the giant publicly traded corporation that benefits from decisions like Citizens United. So the story is a lot more intricate and complicated than some big plutocracy. Thank you for your questions. [applause] thank you. [applause] like we said before, but signing here. The line will start here and go back going. [inaudible conversations] our book tv programming in prime time continues tomorrow night with segments on the run and the u. S. Reporter especial book tv programming focus is next on legal issues with Sidney Powell on her book license to lie exposing corruption in the department of justice. In a little more than an hour and a half my kirk and david fisher on u. S. Marshals inside americas most storied Law Enforcement agency. In about three hours we will look at the Supreme Court with uncertain justice, the roberts scored in the constitution. Former federal prosecutor Sidney Powell on what can be done about prosecutorial misconduct. She was at the Cato Institute to discuss her book i sent to my exposing corruption in the department of justice. This is about an hour and a half. Good afternoon and welcome to the Cato Institute. Im the director of the project on criminal justice. And today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today has just written a new book entitled license to my exposing corruption in the department of justice and the book recounts several cases in which ambitious prosecutors use illegal and unethical tactics to win their cases. Before we get to the panel of experts, i want to take a minute or two to lay out a discussion that is going to follow but before i do that let me ask those that came with cell phones if you take a moment to doublecheck and make sure that they are turned off as a courtesy to our speakers. Thank you. The first point i think needs to be understood is there has been incredible growth criminal system over the past 30 years. In 1980 there were about 1500 federal prosecutors. Today there are close to 8,000. Second, theres been an explosion in the number of crimes of the book. We know there are about 4,000 federal statutes. If you take an account of the federal regulations churned out by the regulatory agencies youre talking about tens of thousands more regulations that can be enforced in the criminal system. I thought there was a telling moment of the Supreme Court a few years ago a representative from the department of justice was up before the justice and he wajustice and hewas explaining t one of the federal statutes and he was explaining the scope by one of the justices and Stephen Breyer said just the second. I think theres about 200 million americans in the workplace and according to your definition of the Honest Services criminal statute about 150 million americans fall on the wrong side of that line. And this was a point when the attorney from the Solicitor Generals Office didnt really deny the point. Now consider that for just a moment. In the eyes of the federal government we have 150 million americans that they consider to be criminals. Thats just one of the criminal statutes. Its so fast that its hard for an ordinary citizen to go about their lives without breaking some rules and regulations. Lets not make a federal case out of it, but that expression is losing its force given the growth of our federal criminal code. We also have to worry about situations where people havent violated any of the rules and regulations but nevertheless its been targeted by an unethical federal prosecutor. The businesses fail. Their families were shattered and their life savings ends up going to attorneys and law firms that are trying to defend them. As a matter of fact. These attorneys will argue that the alternative is even worse. Its too risky talking about complete bankruptcy if you dont plead guilty early in the process because the case will drag on more and more going to the attorneys and a longer jail sentence if the jury chooses to believe the prosecutor rather than their version of. So these are some of the problems the panelists will be addressing along with some specific cases. The format is going to be straightforward. The guest author is going to speak first on the thesis of the book and then introduced the guest commentators and after the remarks open up and take your questions for 15 minutes before we adjourn for the lunch upstairs. Sidney powell served in the department of justice for ten years under the attorneys that were appointed by the political parties. In the trials and appeals to other prosecutors at the attorney generals advocacy institute. She has been the lead counsel in more than 500 appeals in the federal courts and for the past 20 years shes been in private practice representing clients ranging from federal judges to international corporations. Shes been repeatedly rated by their peers by one of the lawyers in america well qualified to discuss prosecutorial ethics. Please welcome Sidney Powell. [applause] i want to thank the Cato Institute for hosting this event. Its very much appreciated and think the judge for joining us. This is a very auspicious occasion. I think im going to start with the foreword to the book written by one of the panelists who was kind enough to write that for me because the issues discussed in the book are fundamental to the fairness of the legal system. The main premise underlining the book is that prosecutors have an ethical and legal constitutional obligation to disclose evidence that is favorable to the defense. There are legal reasons the Supreme Court held that if it is a constitutional obligation fundamental to do process. And then as a practical matter prosecutors have all the cards. They are with the representatives of the agents, Police Officers are the first people on the scene if there is an immediate crime. They want control of the evidence an and and of the furte extent of the expert witnesses. And in the case discussed in the book they have even more control than that. One of my challenges today will be to talk about the book without spoiling any of it for you because i do want you all to read it. Its more like a legal thriller. I wanted people to be able to read it who are not attorneys and for attorneys also to find it interesting and to be held by so that you can continue reading all of it, but it is all true. One person recently asked me if i had and i wished giving me 10 leeway to and i wish for the sake of making it interesting and i said i hate to tell you i actually toned it down. Its not an alleged. Robert jackson was one of our great Supreme Court justices and as the attorney general, he gave a speech if a first come in 1940 that has been enshrined in legal history. He talked about the special role of the federal prosecutor and important for the prosecutor to seek justice and not convictio convictions. She has such complete control over what can happen to an individual and such broad discretion. A prosecutor can invite someone. He can have the case processed quietly and secretly or expos l. To the public. And th hi he has control over where the person goes to prison to a large extent. The government likes to say only the bureau of prisons decides that, but thats not accurate at all. The prosecutor has a lot of input in that regard, and particularly in the cases discussed in the book. Thats true. But, yet, theres no overriding supervision of prosecutors. Youll see that throughout the book also. Their discretion is virtually unbounded. We like to think of the grand jury system as being one that protects citizens, but it doesnt. Grand juries are virtually a rubber stamp for prosecutors. Theres hardly a prosecutor in the country who couldnt get an indictment against a potato out of a grand jury if thats what they wanted to do, or get a case nobuild if thats what they want. So the checks and balances need a serious revision. Its also important for federal judges to pay very close attention to trials. It used to be, i think, at least in my experience under ten different United States attorneys in three districts over a period of ten years. Used to be that judges could trust the prosecutors to tell them what the law was and get the facts straight. No u. S. Attorney i ever worked with would have tolerated for two seconds the behavior i saw that caused me to write the book. They all were adamant that we do it right, secret, that we be fair, and that we secret, be fair, and carefully exercise our discretion to prosecutor only cases we had all thed and were all the evidence and were person was guilty weapon didnt have time or interest to look for something to pin on someone. That was not our job. No u. S. Attorney i ever worked with believed that was our job. And we didnt stack counts of indictments, either. We could indict on one, two, three, maybe four offenses, assuming we had the evidence racked up to prove all of those beyond a reasonable doubt. With no question in our mines that is what should happen in the case. And we produced evidence favorable to the defense that the Supreme Court called brady evidence. That was our job. I have stood in the United States court of appeals for the fifth circuit and confessed error when the trial lawyers got something wrong i would tell the fifth circuit, we screwed that up. I you one through the west law system the word botched, youll find a quote in a footnote of a decision by irving goldberg, where he quotes me as explaining that the dea agents botched it. I think that is the only time the word appears in west law. And the quote was accurate. I havent run that search in a while. Man shy do it again to see if anybody else used it. But its in there. Lots of people want to know why i wrote the book and why i wrote the book now. The answer to the first question is, i just could not stand what i had seen. It broke my heart. I have practiced before the fifth circuit before more than 30 years. Im not going to say how many more. My youthful countenance belies that alone so ill keep that secret. But throughout my practice i have bragged on and applauded and loved fifth circuit. For it to have been given the repeated chances i gave it to correct the egregious errors in this case and not to get it right was just more than i could stand, and then when the Bar Associations for these respective lawyers also failed to do anything about it, i felt like i had to speak up. I know im not the only lawyer that has seen this kind of injustice as judge kozinski said in his dissent in United States verse olson, theres an epidemic of brady violations abroad in the land. Its a significant problem. It affects the fundamental fairness of all our proceedings and if the prosecutors can do what they did to the people discussed in this book, who are were Merrill Lynch executives, one was a United States senator, others were other business executives, all of whom had led stellar lives to the best of everyones knowledge, worked in their communities, contributed to charities, done everything right and believed in the system. To have prosecutors literally make up crimes against them and then be able to push those through the system to conviction and imprisonment, and have Federal District judges in houston and then the fifth Circuit Court of appeals not get it right, was simply heartbreaking to me. So that it why i had to write the book. I knew it had to be done by somebody with credibility. Defendants can del you about all the injustices they suffered and everybody goes, oh, well, he was a convicted felon. So i just felt like it was time that some lawyer stand up and speak out. When i did it, had no idea what the reception would be. I didnt know whether anybody would pay the slightest bit of attention or not. It turns out, people are paying attention, and so i thank each of you for being here to pay that attention to this issue. Because it is so important, and there but for the grace of god go any one of us. If they can do what they did to these people, as brendan sully ran sad said, United States senator ted stephens, they can do it to anyone. The reason i wrote it now is because we have given the legal system every chance to work, and it failed to do so the. And we also gave the Bar Associations every chance to do something about it, visavis the lawyers, and the Bar Associations did nothing. The texas bar bounced the grievance we filed against the texas lawyer like a superball. I mean, it practically came back by return mail even though it was written by bill rhodes, the coauthor of the law of lawyering and considered one of the top three legal ethics experts in the country. A 30page grievance with numerous citations to all the ethical rules and citations to cases. And definitive explanation of the facts that showed aggrievable offense, and the fifth circuit opinion which found that, yes, the prosecutor suppressed evidence favor teen the defense but it didnt matter. So, when the texas bar bounced that i thought of sending them my law license, but a number of friends urged me to continue practicing, which im not sure i can do but im still working on that possibility. Then we also filed in the new york bar against Andrew Weisman and with the d. C. Bar against katherine rumler. The dc bar swept it under the rug. The new york bar, weisman at the time was general counsel, Deputy Director of the fbi. The department of justice was defending him against the ethical charges. They kept it for about 14 months, and then without giving us notice, the new york bar punted it to the office of professional responsibility within the department of justice. Yes, you haired that right. The department of justice was defending andrew iowaman and the new york bar bunted it to the department of justice to decide. Well, you can pretty up figure out how the department of justice decided that one in less than a week the office of professional responsibility, ironically named, within the department of justice, now ironically named, dismissed the grievance. So, i finally sat down and said, okay, you either have to put up or shut up. So i decided to write the book. That is a long explanation of why and when i wrote the book, but that is the fundamental story. The book tells the story of any number of highprofile prosecutions. It tells it at the human story because i also want everyone, including judges to understand the human toll it takes when prosecutors violate their oath, the constitution, and the rules of ethics. So there is a very human story that runs throughout the book of my client in particular, some of ted stephens, and some of one of the prosecutors maybe more of the prosecutors than just one. It tells the story of the Arthur Andersen de debacle. Most everyone thought Arthur Anderson was guilty. I also thought is a start hearing about the enron disaster, i knew the ramifications on people across the country. Millions of people lost a lot of money. Some people lost all their savings. It was horrible. It was an outrage. And most of us, at least from everything that was reported in the press, assumed that everybody that had anything to do with enron was guilty. I was one of those, until i dug into the record of the Arthur Anderson case, when Arthur Anderson asked me to consult when their petition for rehearing was due the reply brief was due in the fifth circuit. So they already filed their opening brief but decided to consult additional counsel in the preparation of their reply