The ongoing Planned Parenthood scandal is a fascinating story that has a lot of facets that illustrate many disturbing aspects of American society. Although it is difficult to do so, I’m going to ask readers here to set aside the horrifying aspects related to abortion and the sale of baby parts for a moment to focus on one particular aspect that has largely gone unnoticed.
The investigation of the Center for Medical Progress by the Department of Justice has rightly been decried as a transparently political move by the right, but it illustrates a much larger truth: the rule of law, especially with respect to Federal prosecutions, is an absolute illusion in America today.
Instead of the rule of law, we now have the rule of almost totally unfettered prosecutors.
I think most people like to believe that in America today, what determines whether you face the crushing weight of a Federal criminal prosecution is some basic overarching principle of justice wherein prosecutors seek out legitimate evildoers and seek to right wrongs. In reality, that just absolutely isn’t true.
If you want to be fully disabused of this notion, I would highly recommend that you purchase and read Harvey Silverglate’s watershed book Three Felonies a Day, which sets forth a number of important points that people like George Will and Orin Kerr have been trying to raise on the right for years. First, the extraordinary proliferation of federal criminal statutes – and, worse, federal regulations that carry criminal penalties for noncompliance – has resulted in a federal criminal regime in which the average American citizen likely unknowingly commits several felonies a day.
The end result of this paralyzing overcriminalization of conduct that is not inherently immoral or unlawful means that a Federal prosecutor can effectively jail you and coerce incriminating testimony against other people any time he wants to. All he has to do is notice you and watch you for long enough and you’ll inevitably do something he can charge you with, no matter how conscientious you are.
A casual perusal of Federal appellate decisions shows that basic principles of fairness, justice, and morality do not by and large guide who does and who does not become the target of massive Federal criminal probes. Rather, once prosecutors have determined that a company deserves to be charged with something, they will go to extraordinary lengths to extract a conviction, regardless of whether any casual observer would conclude that a criminal conviction was fair or that a company had done anything wrong at all.
Let me illustrate with an opinion from the First Circuit. In this case, a bank was charged with thirty-one felonies for violations of byzantine regulations associated with the Currency Transaction Reporting Act. Briefly stated, the bank’s tellers failed to report aggregate withdrawals totaling over $10,000 under circumstances that an ordinary person (especially the average bank teller) would not realize triggered reporting under the Act. In order for criminal liability to attach under the CTRA, prosecutors had to prove that the Bank knowingly violated the CTRA itself.
Prosecutors could not prove that the actual tellers who failed to report the transaction had knowledge that their activities violated the CTRA; rather, they argued (successfully!) that criminal liability should attach to the Bank because surely the collective knowledge of different people who worked for the bank, added up and imputed to some hypothetical person, amounted to knowledge that something illegal was going on. Consider, that the following absurd language actually appears in an appellate judicial decision in the United States:
In addition, however, you have to look at the bank as an institution. As such, its knowledge is the sum of the knowledge of all of the employees. That is, the bank’s knowledge is the totality of what all of the employees know within the scope of their employment. So, if Employee A knows one facet of the currency reporting requirement, B knows another facet of it, and C a third facet of it, the bank knows them all. So if you find that an employee within the scope of his employment knew that CTRs had to be filed, even if multiple checks are used, the bank is deemed to know it. The bank is also deemed to know it if each of several employees knew a part of that requirement and the sum of what the separate employees knew amounted to knowledge that such a requirement existed.
Understand this well: basic fairness and justice often don’t come into the equation when Federal prosecutors come knocking on your door.
So here we have Planned Parenthood caught now on video multiple times appearing to haggle over the sale of aborted baby parts. The newest video released today further shows evidence of a conspiracy to transport these parts over state lines in violation of law. The amount of video evidence already released about Planned Parenthood is far more than the evidence that prosecutors have found necessary in other circumstances to grind companies into dust with oppressive and brutal criminal prosecutions.
And yet, the Department of Justice seems strangely uninterested in even investigating this apparent massive criminal violation of Federal law – a violation that shocks the conscience of even ardent pro-choicers. Instead, of course, they are more interested in whether the Center for Medical Progress committed obscure and technical violations of law during the course of uncovering this criminal conspiracy.
The reason behind this is transparently obvious: the DOJ has a vested interest, bestowed upon it by political appointees and powerful Democrats, to harass the Center for Medical Progress while adopting a “hear no evil, see no evil” approach to Planned Parenthood and their affiliates.
Conservatives who don’t follow the Federal criminal justice system are shocked that this is how things might even possibly work in America. What I hope they take away from this experience, if nothing else, is an understanding that this is all too often exactly the way it works, and that life or death or prison for you or your company often depends on considerations as inappropriate, trivial, and political as the decision to investigate the Center for Medical Progress.
We need Planned Parenthood defunded, for sure. We also need them prosecuted and put out of business. But let’s not lose sight of what this story has uncovered – we need criminal justice reform in this country as well.