Legal experts are sounding the alarm about abuses at the Department of Justice.

In 1806, the Connecticut Courant alleged that President Jefferson was wasting money by buying western Florida from Spain.  The Federalist criticism of the Democratic president led to seditious libel convictions and prison terms for the newspaper’s publishers, who’d led the paper since it was America’s largest patriotic voice advocating for freedom during the Revolution.

In 1812, the Supreme Court overturned the convictions by holding that common law could not provide the basis for a federal crime.  The ruling required the government to alert the public by statutes before filing serious charges.

But that tradition has eroded enormously, creating fears now extending from Main Street to Wall Street.

Attacks on the fairness of Justice Department’s prosecutions large and small are buttressed by two important new books featured at a Cato Institute forum and congressional testimony last week. Introduced by Washington Times columnist Tony Blankley, the speakers make the case that both parties have arrogantly empowered federal prosecutors to use vague laws to target individuals in “creative” or other arbitrary ways with harsh penalities.

“Even then, which is by comparison a more innocent time,” he says, “I was shocked that the power that we had and the ease of abusing it and the system that was slowly getting out of control — so that even if you had good faith, even if you intended to be an honorable prosecutor, the very process by which you exercised discretion, the increasing ambiguity of the law, it was harder and harder for people to know what they were supposed to do.”

He continued:

“The criminal law used to be a series of oak trees that reached up to the sky, and you would see them and behold them and contemplate upon it.  And they were usually descriptions of the 10 Commandments: Don’t kill, don’t rape, don’t kill, don’t give false witness.”

“Now the law is like the blades of grass in a meadow:  You can’t see them, you don’t identify with them, and yet they have poisonous tips and if you just innocently walk along the field you can end up poisoned, legally poisoned, put in a cage — and you never knew that it was a crime.  How can you be guilty of something if you never knew that it was a crime?  And yet increasingly as we’ve criminalized what is really non-criminal activity, whether it’s regulation, whether it’s administration.”

The book In the Name of Justice illustrates these points.  Cato Criminal Justice Project Director Timothy Lynch’s essay collection explores what should be a “crime” — and whether our laws accomplish our goals. “No!” is the essence of Lynch’s response.

Lynch argues, for example, that defendants are typically ruined financially simply from being charged.  He notes that 95% of prosecutions are resolved by plea bargains. Yet his book largely focuses upon a broken system’s cost to society, not to defendants.  Lynch begins by reexamining such basics as:

1. Ignorance of the law. “The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that ‘ignorance of the law is no excuse.’”
2. A criminal code with clear and objective terms.  “Even if there were but a few crimes on the books, the terms of such laws need to be drafted with precision.  There is precious little difference between a secret law and a published regulation that cannot be understood.”
3. Strict liability. “The two basic premises that undergird Anglo-American criminal law are the requirements of mens rea (guilty mind) and actus reus (guilty act). Strict liability criminal offense exploded during the 20th century as legislators created hundreds of ‘public welfare offenses’ related to health and safety.”

Dramatic evidence comes also from Boston defense attorney Harvey Silverglate, author of Three Felonies A Day: How the Feds Target the Innocent” and a house Judiciary Committee witness Sept. 29. His theme:  The average busy U.S. professional commits three felonies daily.  Authorities can thus pick and choose whom to prosecute, with scant review by courts, defense attorneys and the news media.

His compelling case studies focus on health care, high-tech, law, financial services, labor, media and national security. He portrays prosecutors railroading Michael Milken, Martha Stewart and Frank Quattrone into unfounded guilty pleas, much of it to the applause of a largely clueless press.

I confess that virtually none of my hundreds of crime stories during the 1970s as a reporter for the Courant focused on mens rea or similar technicalities. Ironically, I’m now finding the biggest stories of my career as an attorney researching prosecution abuses.  For example, federal prosecutors crusaded unsuccessfully for three years against outspoken Pennsylvania county coroner Cyril Wecht, who faced down 23 felony counts of using his office fax machine for personal faxes reputed to cost the county $3.26 in total.

In the video below, Cato speakers fill in the blanks on how we reached this point.  Their passion reminds me how much the pamphleteering press of our country’s founding focused on pivotal, emotion-laden issues — and how Connecticut’s 1806 collision between law and journalism provides lessons for today. Watch and enjoy if you have the time (71:34).

Our law, journalism and even our language will always evolve. But inspiration comes also from common starting points and goals.  In that spirit, let me point to the mission statement of the Courant from its very first issue in 1764 (using the original “f” for “s” spellings):

Was it not for the Prefs, we fhould be left almoft intirely ignorant of all thofe noble Sentiments which the Antients were endow’d with.