Thats the second part of my answer to you. Thank you. [applause] did i go on too long . [laughter] finish [inaudible conversations] youre watching, booktv. Television for serious readers. You can watch any program you see here online at booktv. Org. And booktv continues now with former federal prosecutor Sidney Powell. She talks about prosecutorial misconduct and what can be done about it. This is about 90 minutes. [inaudible conversations] good afternoon and welcome to the Cato Institute. My name is tim lynch, im the director of catos 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, Sidney Powell, has just written a new book entitled license 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. Now, before we get to our panel of experts, i want to take just a minute or two to lay something of a foundation for the discussion thats going to follow. But before i do that, let me ask those of you who came with cell phones if youd just take a moment now to quickly double check and headache sure that they are make sure that they are turned off as a courtesy to our speakers. Yeah. It includes our panelists. [laughter] okay, thank you. The first more point that i think these to be understood is that there has been 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, theres also been an explosion in the number of federal crimes that are on the books. We know that there are about 4,000 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, were talking about tens of thousands of more regulations that can be enforced through our criminal system. I thought there was a telling moment at the Supreme Court just a few but years ago 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 think it was Justice Stephen breyer. And Stephen Breyer said, just a second. I think theres about 200 million americans in the work lace, and according to place, and according to your definition of the Honest Services criminal statute, about 150 million americans fall on the wrong side of that line. [laughter] and this was a point where the attorney from the Solicitor Generals Office kind of hemmed and hawed. He 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. There are and 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 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 an expression when we were growing up, it said something like, you know, lets not make a federal case out of it. But 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, lets say, 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 that are trying to defend them. As a matter of fact, their own attorneys often advise them to plead guilty even when they have met with their client and are convinced they 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. 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 and their version of events. So these are some of the robs that problems our panelists will be addressing. Our format is going to be straightforward. Our guest author is going to go first and speak on the thesis of our 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 adjourn for a luncheon upstairs. Okay. Sidney powell served in the department of justice for ten 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. Shes been the lead counsel in more than 500 appeals in the federal courts, and for the past 20 years shes been this private practice representing clients ranging from federal judges to international corporations. Shes been with repeatedly rated by her peers as one of the best lawyers in america, so she is well qualified to discuss prosecutorial ethics. So would you please welcome the author of license 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. Its very much appreciated. And thank judge kaczynski for joining us and also ron. This is a very auspicious occasion. Be 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, because 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. The Supreme Court held in brady v. Maryland that its a constitutional obligation, fundamental to due process. And then as a racket call matter practical matter, prosecutors have all the cards. They are usually or their representatives, the agents, the police officers, whoever, are the first people on the scene if there is an immediate crime, or theyre 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 had 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, to find it interesting and be held by it so that you can continue reading all of it. But it is all true. It con trains real contains real transcript excerpts. One person recently asked me if i had embellished. He said he was giving me about 10 leeway to embellish for the sake of making it interesting, and i said i hate to tell you, i actually toned it down. Its not em 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 our great Supreme Court justices, and as attorney general he gave a speech on april 1, 1940, that has been enshrined in legal history. He talked about the special role of a federal prosecutor and how important it is for that prosecutor to seek justice and not convictions. He explained that at its best a prosecutor is one of the most beneficent 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 so 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. 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 no 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 United States attorneys in three districts across the country over a period of ten years it used to be that judges could trust the prosecutors to tell them what the law was and to get the facts straight. No u. S. 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, that we seek justice, that we be fair and that we carefully exercise our discretion to prosecute only cases that we had all the evidence and were sure the person was guilty. We didnt have time to go, or interest, in going to look to find 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 would 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 minds that that was what should happen in the case. And we produced evidence favorably to the 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. In fact, if you run through the westlaw system the word botched, you will 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 thats the only time the word appears in westlaw. [laughter] and the quote was accurate. I havent run that search in a while, maybe i should do it given 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 [laughter] my youthful countenance belies that alone, so im going to keep that secret. But throughout my practice i have bragged on and applauded and loved the 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 could have seen this kind of injustice. As judge kaczynski said in his dissent in United States v. Olson, there is an epidemic of brady violations abroad in the land. It is 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 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 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 theyve suffered, and everybody goes, oh, well, you know, 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, i had no idea what the reception would be. I didnt know whether anybody would pay the slightest bit of attention around. Or not to. 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 think one of us. If they can do to what they do what they did to these people to ted stevens, to four Merrill Lynch executives from wall street to houston to 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 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 hodes, the coauthor of the law of lawyering, and considered one of the top three legal ethics experts in the country. It was a 30page dwreefns with numerous citations to all the ethical rules and citations to cases, and a definitive explanation of the facts that showed aggrieve bl offense and the fifth circuit opinion which found that, yes, the prosecutor suppressed evidence favorable to the defense, but it didnt matter. So when the texas bar bounced that, i actually thought about sending them my law license. I havent done that because a 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 filed with the new york bar against Andrew Weissman and the d. C. Bar against katherine [inaudible] the d. C. Bar kind of swept it under the rug. The new york bar, weissman was general counsel to the Deputy Director of the fbi. So so the t. Of justice was 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 official responsibility. Yes, you heard that right. The department of justice was defending weissman, and the new york bar punted it to the department of justice to decide. Well, you can pretty much figure out how the d. Of justice decided 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, said, okay, youve 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 of any number of high profile prosecutions. It tells it as a 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 stevens and some of one of the prosecutors, maybe more of the prosecutors than just one. It tells the story of the Arthur Anderson debacle. Most everyone thought Arthur Anderson was hour write guilty. I horribly guilty. I have to confess that i also, as soon as i started 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 orr new anderson Arthur Anderson case when he asked me to consult when their reply brief was due in the fifth circuit. So theyd already filed 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 the reply brief filed. The report was massive. Fortunately, they had a megastaff to dive into the record at the time. But it didnt take me long to look at it to wonder why the indictment charged what it charged. The actual offense against anderson was alleged as witness tampering. Which requires an element that i couldnt figure out how they were going to prove. And then when i read the jury instructions, the prosecutors had persuaded the District Court judge in houston to alter the pattern jury instructions. Pat everybody instructions pattern instructions are approved for every circuit for many offenses. Its going to be affirmed on appeal. When judges deviate from the pattern instruction, i mean, that aa loan raises any 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 jury instructions, i just knew that there was no way anderson should have been convicted. Turns out as i dug into it more, the jury was out for ten days before they returned a verdict of convic