Government by intimidation

Alexander R. Cohen Managing Editor, Business Rights Center, Atlas Society
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What good would legal rights do for a nation of cowards too scared to exercise them? For a free society to work, its citizens must have the confidence that their rights will protect them — that doing what they have an acknowledged right to do will not bring government retaliation. In a culture of rights, people know that they can pursue and defend their values without fear of their government.

But a long train of real and apparent abuses, scattered across American life, suggests that our government now wants us to live in fear — that it does not want us to stand confidently on our rights, but to rely on its mercy. It wants us, when faced with official actions with which we disagree, to obey and submit without daring to object.

You may remember the case of Internet innovator and activist Aaron Swartz, who killed himself while facing federal charges for downloading academic papers without permission. The charges carried a maximum sentence of 50 years. When Sen. John Cornyn (R-Tex.) challenged Attorney General Eric Holder about Swartz’s case, Holder said even his prosecutors didn’t think a 50-year sentence was appropriate. But he explained that they wanted Swartz to plead guilty and get a sentence of up to six months — and he considered that a defense of their actions. “There was never an intent” that Swartz would go to prison for decades, Holder said. That was a risk he faced only if he dared to demand his day in court.

When Raj Rajaratnam went to trial on charges of insider trading and was convicted, federal prosecutors asked for a sentence of about 20-25 years — far more than other insider trading defendants had been receiving. The government’s explanation: the other defendants had “accepted responsibility” and taken guilty pleas. The judge gave Rajaratnam 11 years, which was still much more than the people who hadn’t fought the charges got.

Your right to a trial is your right to defend your freedom if you’re accused of a crime you didn’t commit, or of an act you don’t think was a crime. But what good is that right if you don’t dare insist on it? And how many people will dare go to trial if the government threatens them with a sentence much longer than they could get on a guilty plea?

Probably very few: 97 percent of federal “convictions” come from guilty pleas.

Free speech is being undermined too. This spring, the Consumer Product Safety Commission named Craig Zucker personally in a product recall case. Zucker was the CEO whose company, the maker of Buckyballs, mounted an unusual, vigorous public defense against the CPSC’s attack on his right to sell his product. Now he’s the first CEO to face the risk of having to pay the costs of a recall out of his own pocket.

Coincidence? Maybe. But consider this case, reported by the Baltimore City Paper: The federal government seized almost $70,000 from Maryland farmer Randy Sowers, accusing him of illegally structuring cash deposits to avoid government reporting requirements. Before Sowers spoke to the City Paper, his lawyer, David Watt, recalled, prosecutor Stefan Cassella had engaged in a “relatively amiable process” of trying to resolve the case with him. After the interview was published, Watt said, Cassella told him (in Watt’s paraphrase): “Your client spoke to the press and now I have to file charges. Otherwise it will appear that I was influenced by your client speaking to the press.”

Cassella then refused to negotiate over the settlement amount, Watt told the City Paper. He insisted that Sowers concede the reasonableness of the seizure, in language he didn’t force another businessman in a similar situation to accept. Why the difference? “Mr. Taylor [the other businessman] did not give an interview to the press.”

Cassella was right that future forfeiture victims might draw a lesson about the effects of going public from how Sowers was treated — even if speaking to the press didn’t in fact change his treatment. But Cassella had a choice about the lesson. If he treated Sowers gently, people might infer that speaking to the press is useful; if harshly, that speaking to the press is unsafe. Similarly, making Zucker the target of a groundbreaking case sends the message that publicly confronting the CPSC is unsafe.

Intimidation isn’t just an Obama Administration problem. George W. Bush was in office when Qwest CEO Joseph P. Nacchio refused a National Security Agency demand for customer information. (Nacchio thought the demand was illegal, a lawyer representing him said later.) The NSA then canceled some of its contracts with Qwest. Nacchio had sold Qwest stock when he thought it was going to go up because of those contracts. But after the contracts were cancelled and the stock went down instead, Nacchio was charged with insider trading—trying to avoid a loss by selling the stock. He went to prison. The obvious lesson, even if unintended: Don’t stand up to the NSA.

Living as a free person means acting on your rights. The point of having our rights legally protected is to be able to exercise them with some security. If our government makes us too afraid to exercise our rights, we will end up living as if we did not have rights.