Former federal prosecutor sidney howell. She talks about misconduct and what can be done about it. This is about 90 minutes. Good afternoon and welcome to the Cato Institute. Find the director of the project on criminal justice. Today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today Sidney Powell has written a new book entitled license to lie exposing corruption in the department of justice. The book recounts several cases in which ambitious prosecutors used a legal and unethical tactics to win their cases. Before we get to the panel of experts, i want to take a minute or two to a something of a foundation for the discussion thats going to follow but before i do that, let me ask those of you that came with cell phones if you would take a moment to quickly doublecheck and make sure that they are turned off as a courtesy to our speakers. That includes our panelists. [laughter] the first point i think that needs to be understood is that there has been an incredible growth in the federal criminal system over the past 30 years. In 1980 there were about 1500 federal prosecutors. Today there are close to 8,000. Second theres also been an explosion in the number of federal crimes on the books. We know there are about 4,000 federal statutes ons right now but when you take into account all of the federal regulations that are churned out by the regulatory agencies we are talking about tens of thousands of regulations that can be enforced in the crib. Rico criminal system. A representative from the department of justice is was explaining one of these statutes and as he was explaining the scope he was interested by one ointerpreted by oneof the justis Justice Stephen breyer and he said just a second. I think theres 200 million americans in the workplace and according to your definition of the Honest Services criminal statute about 150 million fold on the wrong side of that line. This was the point where he didnt really deny the point. Consider that for just a moment. In the eyes of the federal government we have 150 million americans that they consider to be criminals and thats just one of these federal criminal statutes. As i said there are thousands more. The spider web of regulations is so vast its hard for an ordinary citizen to go about their lives without breaking some rule or regulation. This is just not the same america that we grew up with. A lot of us can remember in expression when we were growing up that said Something Like lets not make a federal case out of it but that expression is losing its force given the growth of the federal criminal code. We also have to worry about situations people have not violated any one of these rules and regulations but nevertheless have been targeted by an unethical prosecutor. Their businesses fail, their families are shattered into andr life savings into going to attorneys and law firms that are going to defend them. As a matter of fact their own attorneys advised him to plead guilty but theyve met with the client and they are convinced they are innocent. If other peoplea lot of people d that have been . They argue the alternative is even worse. Its too risky. We are talking about complete bankruptcy if you dont plead guilty early in the process because the case will drag on. More money going into the attorneys. Even a longer jail sentence senr the journey chooses to believe the prosecutor rather than their version of events. So these are some of the problems analysts will be addressing along with specific cases. I will then introduced the guest commentators and then we will open up and take your questions about 15 minutes before we adjourn for the launching of stairs sai Sidney Powell servedn the department of justice under the u. S. Attorneys appointed by both political parties. During her to wear in the department she taught courses on criminal trials and appeals to other prosecutor prosecutors ate attorney generals advocacy institute. She has been the lead counsel on more than 500 appeals in federal court and for the past 20 years shes been in private practice ranging from federal judges to international corporations. Shes been reportedly raided by her peers as one of the best lawyers in america should see steve rico she is qualified to discuss ethics. Please welcome the author of licensed to lie, Sidney Powell. thank you all very much. I want to thank the Cato Institute for hosting this eve event. I very much appreciated. Appreciate it. Thank you judge Alex Kozinski and also ron weich. This is a very auspicious occasion. I think im going to start with the foreword to the book. The judge Alex Kozinski was kind enough to write it for me because the issues in the book are fundamental to the fairness of the legal system. The main premise underlying the book is prosecutors have an ethical and legal and constitutional obligation to disclose evidence that is favorable to the defense. There are legal reasons for its Supreme Court held in three d. Versus maryland that i has a constitutional obligation fundamental to do process. Then as a practical matter prosecutors have all the cards. The agents and Police Officers are at the first people on the scene if theres an immediate crime or they are the ones who have conducted an investigation into allegations to begin with or put together all the pieces to charge a crime. They have control of the evidence and of different sex. They have control of the expert witnesses and in the cases 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 written like a beagle thriller. I wanted people to be able to read it who were doctor attorneys and for attorneys also do find it interesting and detailed by it so that you can continue reading it but it is all true. It contains real transcript excerpts. One person asked me as i have embellished piece that he was giving me up 10 of the way to embellished for the sake of making it interesting. I said i hate to tell you i actually toned it down. Its not embellished. So with that in mind, there are a number of things in the book that i will share with you. Robert jackson was one of the great Supreme Court justices and as attorney general he gave a speech on april 1, 194 first 19t has been enshrined in legal history. He talks about the role of a federal prosecutor and how important it is for the prosecutor to think justice and not convictions. He explained that his best its one of the forces in society but at its worst he is one of the worst because he has such complete control over what can happen to an individual and so such broad discretion. A prosecutor can indict someone. He can have the case processed quietly and secretly or exclusive old public and humiliate and degrade the person as much as possible through the process. He had control over where the person goes to prison to large extent the government likes to sing only the bureau of prisons assigned at thats not accurate at all. In the cases we discussed in the book thats true. But yet, there is no overriding supervision of prosecutors. You will see that throughout the book also. Also. The discretion is virtually unbounded. Wed like to thinwe like to thid jury system as one that protects citizens but it doesnt. They are virtually a rubber stamp for prosecutors. Theres hardly a prosecutor in the country that couldnt get an indictment against a potato out of the grand jury if thats what they wanted to do or get a case billed 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 attorneys in three districts across the country over a period was ten years it used to be judges could trust the prosecutors to tell them what th the law was indicative facts straight. No attorney i ever worked with would have tolerated for two seconds the behavior that i saw that caused me to write the book. They all were adamant that we do it right and that we seek justice and be fair and carefully exercise our discretion to prosecute only cases that we had all the evidence and we were sure the person was guilty. We didnt have time or interest in going to look to find something to pin on someone. That wasnt our job. No u. S. Attorney i worked with belief that wa was our job if we didnt stack the kinds of indictment either. We would invite on one, two, three company b. For offenses assuming we have the evidence backed up to prove all of those beyond a reasonable doubt with no question in our mind that 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. Ive stood in the court of appeals and confessed error when the trial lawyers got something wrong i wouldve told that we screwed that up. In fact if you run through the system, the word botched the quote in a footnote of a decision by urging goldberg where he quotes me explaining the agents botched it. I think thats the only time the word appears. Maybe i should do that search again to see if anybody else has 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 for more than 30 years. Im not going to say how many more. Im going to keep that secret. But throughout my practice i have bragdon and applauded and loved the circuit for it to be given the chance i gave it the chance to correct and not get it right was more than i could stand. They also failed to do anything about it. I know im not the only leader that has seen this kind of injustice. As the judge said in the United States versus olson there is an epidemic of the violations abroad. It is an attempt problem that affects the fundamental fairness of all of our proceedings and if the prosecutors can do what they did who were Merrill Lynch executives in the United States senate and others were other Business Executives all of whom had fled stellar winds did everything right and believed in the system to have prosecutors literally make up crimes again against. Federal District Court of appeals not get it right word is simply heartbreaking to me. Thats why i had to write the book. I knew it had to be done with credibility. Defendants can tell you about all of the injustices they suffered and they say he was a convicted of selling. So i felt like it was time for some lawyer speak up. When i did it i had no idea what the reception would be. I did just that if anybody would pay the slightest bit of attention or not. It turns out people are paying attention and so i think each of you for being here to pay the attention to that issue because it is so important and there but for the grace of god go any one of us. If they can do with a date to us as Brendan Sullivan said senator ted stevens before the Merrill Lynch executives and wall street and houston and dallas they can do it to anyone. We also gave the Bar Association every chance to do something about it in at the Bar Associations did nothing. The texas bar bounced the great things like a super bowl. It practically came back by return mail even though it was written by the coauthor of the law of lawyering and considered one of the top experts in the country. It was a 30 page brief in numerous citations to the cases and of the definitive explanation of the fact that showed the defense and the fifth circuit opinion that found that yes the prosecutors suppress evidence favorable to the defense but it didnt matter. So when there are bounced back and thought about sending them the license i havent done that because the number of friends urged me to continue practicing which im not sure i can do but im still working on that possibility and then we also find with the bar against katherine dot dc bar swept it under the rug. The deputy counsel of the fbi said the department o departmene was the sending him against the ethical charges. They kept it for about 1 for abs and then without giving notice that new york bar punted it to the office of the responsibility within the department of justice. Yes you heard that right the department of justice was defending andrew weissman. You can pretty much figure out how the department of justice decided that one. In less than a week the office of responsibility ironically named in the department of justice now ironically named dismissed a grievance. I sat down and said okay you either have to put up or shut up so i decided to write the book. Thats a long explanation of why i wrote the book but that is the fundamental story. The book tells the story of any number of highprofile prosecutions because i want everyone in quitting judges to understand the human toll it makes when prosecutors violated the oath, the constitution and the rules of ethics. So there is a very human story that run throughout the book of my client in particular. Some of text things ted stevens. Most everyone thought Arthur Andersen was horribly guilty. I have to confess that i did also as soon as i started hearing about the enron disaster i knew that ramifications on people across the country, millions of people lost a lot of money and all their savings. It was a horrible outrage and most of us from everything that was reported in the press assumed anybody that had anything to do with enron was killed. I was one of those until i dug up the case of Arthur Andersen when the petition for the read hearing was due, and other petition for the fifth circuits appeaappeal for the file to the opening brief but decided to consult additional counsel in the preparation of 3. 17 i got involved. We had 14 or 30 days to get a t. The record was massive. They have a staff to divide it into the record at the time but it didnt take me long to wonder why the indictment charged that charged. The actual offense against andersen requires an element i couldnt figure out how they were going to prove and then when i read the instructions they had persuaded the judge in houston to alter the pattern and the jury instructions. Patterns are approved in every circuit for many offenses. If you use the power instruction will be affirmed on appeal. Its already been uncovered. When you deviate from the pattern instruction, that alone raises any number of red flags. There is rarely a reason to do that. But here they persuaded the court to do that. Between the indictment and the instructions i knew there was no way anderson should have been convicted. It turns out as i dug into it more the jury was out for ten days before theyve returned the verdict. The company Arthur Andersen was destroyed upon indictment. They represented 2300 companies. They hit 85,000 employees worldwide so easy 5,000 jobs were destroyed to avoid upheaval in the markets and once the case went to the fifth circuit affirmed without a problem. Finally the Supreme Court took the case and reversed it 9 9nothing because anderson didnt have fair warning that his conduct was criminal, witness tampering wasnt the statutes to use into the conduct wasnt criminal at the time and the jury instructions Justice Rehnquist wrote for the Unanimous Court said it was shocking how little clip ability the instructions required. They removed all elements of intent from the instructions. The prosecutor primarily responsible for the Arthur Andersen indictment and conviction is now the head of the Criminal Division of our department of justice. Her name is leslie caldwell. The co prosecutor became general counsel Deputy Director of the fbi. He went back from his days after convicting andersen they then turned their sights to the executives on wall street and wanted to send a message to wall street an and viewed the bankers and spies guys Getting Better but mobsters and suits. That was the basic attitude. The destruction gave them power when they went to any other organization because they knew that if they didnt cooperate fully they would receive the Death Penalty that Arthur Andersen suffered so they entered into the most courageo d just ive ever seen. They would see nothing publicly disagree on the task force view of the fact of the case but if the task force wanted to interview a single employee the Task Force Attorney could be present. They installed an overseer who reviewed the bills from the attorneys so we have to be careful to describe what we were working on to not let the government know what that was. They named 100 people as conspirators in the litigation at large which meant everyone had to lawyer up if they were smart at all they insisted clients plead the fifth amendment because if you talk and said anything that disagreed with the governments view of the case you were subject to perjury and obstruction of justice. They reminded any witness of the threats daily. Some witnesses got called as many as three times a day reminding them. So the prosecutors leslie caldwell, andrew weissman, kathryn shuts down any access by the Merrill Lynch to his to any defense witness and in fact our own inhouse counsel was threatened with indictment after she testified in the grand jury her status was changed from subject to target of the investigation so even when she took the witness stand for the defense which the lawyers didnt know she was going to do until the last minute was terrified. He sat in front of her taking notes the entire time she testified and they didnt give us any of the material or evidence favorable to the defense to the constitution required that we would be giving. They told the court repeatedly there was