Booktv continues down the former federal prosecutor Sidney Powell. He talks about prosecutorial misconduct and what can be done about it. This is about 90 minutes. Good afternoon. Welcome to the Cato Institute. My name is tim weich. Today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today Sidney Powell is just written a new book entitled licensed to lie exposing corruption in the department of justice. And the book recounts several cases in which ambitious prosecutors used illegal and unethical tactics to win their cases. Before we get to our panel of experts i want to take a minute or two to lay something of a foundation for the discussion thats going to follow but before he do that let me ask those of you who came with cell phones if you would just take a moment now to quickly doublecheck and make sure that they are turned off as a courtesy to our speakers. It includes our panelists. [laughter] okay, thank you. The first that i think needs to be understood is that there is then 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 8000. Second, there is also been an explosion in the number of federal crimes that are on the books. We know that there are about 4000 federal statutes on the books 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 directly or mill system. I thought there was a telling moment at the Supreme Court just a few years ago. A representative from the department of justice was up before the justices and he was explaining the scope of just one of these federal statutes and as he was explaining the scope he was interrupted by one of the justices. I i think Lewis JusticeStephen Breyer and Stephen Breyer said just a second. I think there are about 200 million americans in the workplace and according to your definition of the Honest Services criminal statutes, about 150 million americans fall on the wrong side of that line. This was a point where the attorney from the Solicitor Generals Office hamdan hague. 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. Thats just one of these federal criminal statutes. As i said there are thousands more. The spider web of regulations is now so vast that its really hard for an ordinary citizen to go about their lives without breaking some rule or regulati regulation. You know this is just not the same america that we grew up with. A lot of us in this room i think can remember in expression when we were growing up that said Something Like lets not make a federal case out of it. That expression is really losing its force given the growth of our federal criminal code. Now we also have to worry about situations where people have actually not violated any one of these rules and regulations but have nevertheless been targeted by an unethical federal prosecutor. The lives of these people are turned upside down. Their businesses fail. Their families are shattered and their life savings ends up going to attorneys and law firms who are trying to defend them. As a matter of fact their own attorneys often advised him to plead guilty even when they have met with their client and are convinced that there are innocent. A lot of people say how can that be . Why would that happen . These attorneys will argue that the alternative is even worse. Its too risky. We were talking about complete bankruptcy if you dont plead guilty early in the process. Because the case will drag on. More money going to the attorneys and even a longer jail sentence if the jury chooses to believe the prosecutor rather than their version of events. So these are some of the problems that our panelists will be addressing along with some specific cases. Our format is going to be straightforward. Our guest author is going to go first since become a thesis of her book. I will then introduce our guest commentators and after their remarks we will then open it up and take your questions for about 15 minutes before we adjourned for lunch upstairs. Sidney powell served in the department of justice for 10 years under u. S. Attorneys that were appointed by both political parties. During her career in the department she taught courses on criminal trials and appeals to other prosecutors at the attorney generals advocacy institute. She has been the lead counsel on more than 500 appeals in the federal court and for the past 20 years she has been in private practice representing clients ranging from federal judges to international corporations. She has been repeatedly raided by her peers as one of the best lawyers in america so she is well qualified to discuss prosecutorial ethics. Would you please welcome the author of licensed to lie, Sidney Powell. [applause] thank you all very much. Thank you tim and i want to thank the Cato Institute for hosting this event. It is very much appreciated. Thank you judge kaczynski for joining us and also ron weich. This is a very auspicious occasion. I think im going to start with the forward to the book. It is written by one of our panelists, judge kaczynski was kind enough to write that for me. The issues discussed in the book are fundamental to the fairness of our legal system. The main premise underlying the book is that prosecutors have an ethical and legal and constitutional obligation to disclose evidence that is favorable to the defense. There are legal reasons for it and the Supreme Court held in brady versus maryland that its a constitutional obligation fundamental to due process. As a practical matter prosecutors have all the cards. They are usually or their representatives, agents and the Police Officers or whoever are the first people on the scene if there is an immediate crime where 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. They have control of the forensics. 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 to you about the book without spoiling any of it for you because i do want you all to read it. Its written like a legal thriller. I wanted people to be able to read it who are not attorneys and for attorneys also do find it interesting and be held by it so you can continue reading all of it. But its all true. It contains real transcript excerpts. One person recently asked me if i had embellished. He said he was giving me 10 leeway to embellish 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 from the book that i will share with you. Robert h. Jackson was one of her great support Supreme Court justices and as attorney general he gave a speech on april 11940 that has been enshrined in legal history. He talked about the special role of a federal prosecutor and how important it was for that prosecutor to seek justice and not convictions. He explained that at its best a prosecutor is one of the most magnificent forces in our society but at his worst he is one of the worst because he has such complete control over what can happen to an individual and such broad discretion. A prosecutor can indict someone. He can have the case processed quietly and secretly or he can expose it all to the public and humiliate and degrade the person as much as possible through the process. 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. You will 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 every rubberstamp for prosecutors. There is hardly a prosecutor in the country that couldnt get an indictment against a potato out of a grand jury if thats what they wanted to do or get a case now build that thats what they want. So the checks and balances needed 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 10 different United States attorneys and three districts across the country over a period of 10 years, it used to be that judges could trust for prosecutors to tell them what the law was and to get the facts straight. Now straight. No u. S. Attorney ahip or worked with would have tolerated for two seconds the behavior that i saw that cause me to write the book. They all were adamant that we do it right, that we seek justice, that we be fair and we carefully exercise her discretion to prosecute only cases that we have all the evidence and we are sure the person was guilty. We didnt have time or interest in going to look to find something to pin on someone. That was not our job. Now u. S. Attorney i ever worked with believed that was our job and we didnt stack counts of indictments either. We would indict on one, two, three, maybe for four offenses assuming we have the evidence racked up to prove all of those beyond a reasonable doubt with no question in our minds that is what should happen in the case. We produced evidence favorable to the defense that the Supreme Court called brady evidence. That was our job. I stood in the United States court of appeals for the fifth circuit and when the trial lawyers got something wrong i would tell the fifth circuit we screwed that up. In fact if you run to the westlaw system the word botched, you will find a quote in the footnote of a decision by Irving Goldberg where he quotes me as explaining the dea agents botched it. I think thats the only time the word appears in the westlaw. The quote was accurate. I havent run that search in a while. Maybe i should do it 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 have 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. My youthful accountants bolide that alone so im going to keep that secret. Throughout my practice i have bragdon and applauded and loved the fifth circuit. For it to have been given 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. Then when the Bar Associations with these respective lawyers also failed to do anything about it, i felt like i had to speak of. I know im not the only lawyer that has seen this kind of injustice. As judge kozinski said in his dissent in United States versus oulson theres an epidemic of brady violations abroad in the land. It is a significant problem. It affects the fundamental fairness of all of our proceedings and if the prosecutors can do what they did to the people discussed in this book who are Merrill Lynch executives. One was a United States senator. Others were other Business Executives all of them have led stellar lives to the best of everyones knowledge, work in their communities, contributed to charities, done everything right and believed in the syst 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 the fifth Circuit Court of appeals not get it right with simply heartbreaking to me. So that is why i had to write the book. I knew it had to be done by somebody with some credibility. Defendants can tell you about all the injustices they have suffered and everybody goes all go well he was a convicted felon trade so i just felt like it was time that some lawyers stand up and speak out. When i did it i had no idea what the reception would be. I didnt know whether anybody would pay the slightest bit of attention are not. It turns out people are paying attention to it so i thank each of you for being here to Pay Attention to this issue. Because it is so important and they are but through the grace of god go any one of us. If they can do what they did to these people as Brendan Sullivan has said to United States senator ted stevens to four maryland executives on wall street from houston and dallas, 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. 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 was filed against the texas lawyer like a super bowl. It practically came back by return mail even though it was written by bill posed the coauthor of the law of lawyering and considered one of the top three legal ethics experts in the country. There were numerous citations to all the rules and citations to cases and definitive explanations that showed the great couple of cents on the fifth circuit opinion which found that yes the prosecutors suppressed evidence favorable to the defense but it didnt matt matter. So when the texas bar announce that i thought about sending them my law license. I havent done that because a member of friends urged me to continue practicing what im not sure i can do but im still working on that possibility. Then we also filed with the new york bar against Andrew Weisman and with the d. C. Bar against catherine rambler. The d. C. Bar just kind of swept under the rug. The new york bar, weisman at the time was general counselor of the fbi so 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 heard that right. The department of justice was defending Andrew Weitzman and the new york bar punted to the department of justice to decide. You can pretty much 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 got to put up or shut up so i decided to write the book. Thats a long explanation of why and when i wrote the book but that is the fundamental story. The book tells the story up any number of highprofile prosecutions. Tells 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. There is a very human story that runs throughout the book of my client in particular. Some of ted stevens and sum up one of the prosecutors, maybe more but prosecutors than just one. It tells the story of the Arthur Andersen debacle. Most everyone thought Arthur Andersen was hardly guilty. I have to confess that i i also as soon as i started hearing about the enron disaster, i knew the ramifications on the 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 Andersen case when Arthur Andersen asked me to consult on their petition for rehearing. The reply brief was due in the fifth circuit so the fifth circuit so they at our defile their opening brief but decided to consult additional counsel in the preparation of their reply brief so thats when i got involved. I think we had 14 or 30 days to get it vile filed. The record was massive. Fortunately maureen was lead counsel because they had a megastaff to divide it up and divide into the record at the time. It didnt take me long long to look at it to wonder why the indictment charged what it charged. The actual offense against andersen was alleged as witness tampering, which requires an element that i couldnt figure out how they were going to pro prove. Then when i read the jury instructions they had altered the prosecutors and persuaded the District Court judge in houston to alter the pattern of jury instructions. Patterned instructions are proof for annie circuit for any criminal offenses. It is sorry being covered. When judges deviate from the pattern of instruction, that alone raises in a number red flags. There is rarely a reason to do that. But here they persuaded the court to do that. Between the indictment and the jury instructions i just knew that there was no way anderson shouldve been convicted. It turns out as i dug into it more the jury was out for 10 days before they returned a verdict of conviction. The company Arthur Andersen was destroyed immediately upon indictment. They represented 2300 publicly traded companies. They had 85,000 employees worldwide so 85,000 jobs were destroyed. The indictment had to be sealed for a week so th