CARDOZO LAW REVIEW [Vol. 20:853 1999]

HOW THE LAW WAS LOST*

Paul Craig Roberts**

There is an old English saying, “That which thy fathers bequeathed thee / Earn it anew if thou would’st possess it.”[1] When it comes to accountable law, we have not been earning it anew. Consequently, we no longer possess it. Neither do we any longer possess law as a shield against the power of government. The delegation doctrine has made “We the People” an empty vessel, and the erosion of the Rights of Englishmen[2] has made law a weapon against the people.

The Rights of Englishmen are the prohibitions against crimes without intent, retroactive law, and self-incrimination.[3] These prohibitions are buttressed with restraints on prosecutorial powers. Each of these legal protections took centuries to achieve, and they have all taken a ferocious beating in twentieth-century America. Today, even wealthy and prominent Americans are less secure in the law than unemployed workers in the 1930s.

No crime without intent. To break the law requires a willful act. The law must be known and intentionally violated. This means that the law has to be clear on the statute books and not subject to the discretion of law enforcement officers or regulators. Many prominent cases in recent years, however, show that this safeguard against tyranny no longer exists. The Clark Clifford and Robert Altman,[4] Charles Keating,[5] Exxon Valdez,[6] and Northern Virginia apple juice producer Ben Lacy[7] are examples.

In these cases, prosecutors relied on novel theories to legislate new infractions by criminalizing civil offenses or, in the Clifford-Altman case, on rank speculation that two separate legal transactions comprised a conspiracy. In the Clifford-Altman case, all that had occurred was that Clifford and Altman had financed purchases of First American Bankshares with a bank loan. The transaction was handled by the blue-chip New York law firm Milbank, Tweed, Hadley and McCloy. The stock’s subsequent sale netted Clifford $3 million and Altman $1.5 million,[8] and the prosecutors interpreted this capital gain as a bribe for First American’s purchase in competitive bidding of the Bank of Georgia.[9]

In the case of Charles Keating, whose conviction has been overturned,[10] he was convicted of a crime that did not exist until he was charged with it.[11] The prosecutors, in effect, pieced together a bill of attainder against Keating by transforming the civil tort doctrine of respondeat superior, in which a master is economically liable for the wrongdoings of his servant, into a crime.

In the Exxon Valdez case, the United States Justice Department criminalized an accident. The Justice Department charged Exxon with the criminal intention of running the Valdez supertanker aground to pollute the water with $150 million of oil and to kill migratory birds without a license.[12]

Ben Lacy, a well respected seventy-three-year-old man running a family business, made a few small mistakes in filling out state environmental forms.[13] Aggressive state environmental officers theorized that the mistakes were intentional and part of a conspiracy to hide the pollution of a stream behind the plant. The commonwealth attorney would not touch the case, but the Justice Department had a quota for white-collar crimes and needed the case. The factual evidence showed a pristine stream. This evidence was suppressed by the Justice Department, which got the case tried on surmise alone. When the judge told the assistant United States attorney that the government had no case, the prosecutors got a short recess and suborned the perjury of the scared co-defendant, a low level employee with little education. His testimony was tailored to fit the conspiracy surmise, and Lacy was convicted despite the purity of the stream.

Retroactive law. In Leviathan,[14] Thomas Hobbes says that a precept of a just commonwealth is the requirement that “[n]othing can be made a crime by a law made after the fact.”[15] Due to an early and foolish United States Supreme Court decision, retroactive law is common on the civil side.[16] Superfund is the most magnificent example for which people are held liable to the point of personal financial ruin for actions that were legal when they occurred and which they did not commit. The Supreme Court permits retroactive taxation.[17] The last retroactive tax increase reached back two years. Why not twenty years?

When the law breaks down on the civil side, it will eventually find its way into the criminal side. Thus, Charles Keating was convicted of a retroactive criminal offense invented by a prosecutor.

The Justice Department’s current antitrust investigation of Microsoft Corporation is another example of retroactive law. According to Business Week, Assistant Attorney General Joel Klein has a novel theory that Microsoft has committed an antitrust infraction.[18] As Mr. Klein’s theory is not on the statute books, Microsoft had no way of knowing it was violating the law.

No self-incrimination. This rule was made to guard against torture. In earlier times, guilty pleas were distrusted and inherently suspect, because they created a presumption of coercion and torture, and violated the maxim that “no man is bound to accuse himself.”[19] Revering truth, English judges were loathe to accept guilty pleas and urged prisoners to retract them. Jurists presumed that only duress, torture, or unethical promises of leniency would cause a defendant to forsake a trial.

With plea bargains, we have resurrected torture. According to the Justice Department, ninety to ninety-five percent of state, local, and federal criminal cases are settled by plea bargains.[20] Essentially the same data holds for civil cases.[21] Why is this? The answer lies in the substantially greater penalty associated with conviction in a trial compared to a negotiated plea.

The purpose of a trial is to find the truth. The purpose of a plea is to minimize punishment by confessing to an offense not committed. Once pleas become the rule, prosecutors and police can draw up indictments against individuals for which they have little or no evidence — witness the Michael Milken case, any of Mayor Rudy Guiliani’s other financial cases, or the Archer-Daniels-Midland price-fixing case or any number of drug cases and asset forfeitures.

Prosecutorial abuse. The principle of prosecutorial discretion once protected citizens from being targeted by those empowered to prosecute.[22] Prosecutors have enormous discretion in choosing their cases, but the choice should be constrained by the amount of evidence and the level of criminality. If there is strong evidence that nine adults committed murders, some evidence that a school-child stole a loaf of bread, and speculation that a banker may have violated an arcane law, the prosecutor is not supposed to first chase after the schoolchild or the banker.

In addition, the prosecutor should not bring the full weight of the government against private individuals in searching for reasons to prosecute them. Armed with complete access to everything citizens do, creative prosecutors could find novel grounds for indictments against almost anyone. Prosecutors are supposed to deal with known crimes and not engage in fishing expeditions to find grounds for indicting a person.

In 1940 United States Attorney General, and later Supreme Court Justice, Robert Jackson said that the most dangerous power of a prosecutor is that:

he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to, or in the way of, the prosecutor himself.[23]

The role of a prosecutor in a criminal case is not only to be a plaintiff, but also to represent the defendant. As plaintiff, the government is to follow and present the evidence against the charged party. As defendant, the government has to insure that the party accused of committing a crime is treated fairly by respecting his rights throughout the judicial process. Only by exercising this dual responsibility can the government be an agent of justice. Justice is not upheld if the law is stained in order to obtain a conviction. Prosecutors who suborn perjury or withhold exculpatory evidence desecrate the law.

In 1934 Supreme Court Justice George Sutherland summarized the dual role of prosecutors:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.[24]

Justice Jackson saw it the same way:

[Prosecutors who focus on building] up statistics of success ha[ve] a perverted sense of practical values, as well as defects of character. . . . [T]he citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.[25]

What percentage of prosecutors fit this model today? Ambition has prevailed over justice.

Delegation. First, notice that the cases I have mentioned are examples of de facto delegation, whereby judges and legislators permit prosecutors to legislate bills of attainder with “novel theories.” To prevent this corruption of the Rights of Englishmen, our Founding Fathers made law accountable to “We the People.” This accountability was destroyed by the delegation to administrative agencies brought in by the New Deal. Theodore Lowi and David Schoenbrod have told this story well.[26] What I can add is that it is much worse now. Initially, delegation had to have a statutory basis. But as regulators grew accustomed to writing the law, they grew comfortable with writing laws for which no authority was delegated. To this has been added the delegation of the power of the purse. In January 1998 the Federal Communications Commission imposed a telephone tax used to finance educational expenditures.[27] The momentum is to make things worse. The first act of the first Republican Congress in forty years was to give the executive a line item veto.[28]

“We the People” have vanished. Our place has been taken by wise men and anointed elites. We still have the pretense of congressional oversight and the scholasticism of the Administrative Procedure Act.[29] This facade lacks the honesty of the Enabling Act,[30] passed by the Reichstag, which delegated legislative power to Hitler’s executive branch and reads as follows:

In addition to the procedure for the passage of legislation outlined in the Constitution, the Reich Cabinet is also authorized to enact laws. . . . The national laws enacted by the Reich Cabinet may deviate from the Constitution . . . The national laws enacted by the Reich Cabinet shall be prepared by the Chancellor and published in the official gazette. They come into effect, unless otherwise specified, upon the day following their publication.[31]

Why does delegation matter? Cannot the wise elites do better than “We the People” What if they could? The case for coercion is extremely weak compared to the case for persuasion and majority consensus. The case for the public-spirited bureaucracy uncorrupted by power and brimming with wisdom relies on a Charlemagne.[32] There is nothing worse than having a Charlemagne system without a Charlemagne. The only alternative to self-rule and accountable lawmaking is the rule of power. Lenin best defined this type of rule: “It means neither more nor less than unlimited power, resting directly on force, not limited by anything. Nothing else but that.”[33]

Tyranny is the inevitable consequence of rule from above, a point that the Founding Fathers understood well when they separated the powers of a small and restrained government. Liberty is a human achievement, the product of a 1000-year struggle. We have taken too lightly our obligation to “earn it anew.” Consequently, we are ceasing to possess “that which thy fathers bequeathed thee.” Our legislative political order has become an administrative state in which “We the People” are increasingly fearful of the government that we allegedly control. If Thomas Jefferson was right, we cannot get self-rule back without a revolution.


* Luncheon Address of the symposium “The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives” held at the Benjamin N. Cardozo School of Law, Yeshiva University, on March 19, 1998.

** Chairman, Institute for Political Economy, Washington, D.C.; Senior Research Fellow, Hoover Institution, Stanford University, Stanford, Cal.; Research Fellow, Independent Institute, Oakland, Cal.

[1] Lady Margaret Thatcher, Address at the Heritage Foundation’s “Leadership for America” Gala (Dec. 10, 1997) (quoting an unknown poet).

[2]See 1 WILLIAM BLACKSTONE, COMMENTARIES *116-473; FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 9-55 (1985); JOHN MAXCY ZANE, THE STORY OF LAW 336-37 (2d ed., Liberty Fund, Inc. 1998) (1927). See generally NORMAN F. CANTOR, IMAGINING THE LAW: COMMON LAW AND THE FOUNDATIONS OF THE AMERICAN LEGAL SYSTEM (1997).

[3]See sources cited supra note 2.

[4]See infra text accompanying note 9.

[5]See infra text accompanying notes 10-11.

[6]See infra text accompanying notes 8-9.

[7]See infra text accompanying note 13.

[8]See Morgenthau v. Clifford & Altman, N.Y. L.J., Dec. 31, 1992, at 25 (N.Y. Sup. Ct. Dec. 30, 1992).

[9]See Michael R. Beschloss, Clifford Speaks, NEW YORKER, Sept. 6, 1993, at 44, 44-50; Richard O. Cunningham, The Persecution of Robert Altman, WALL ST. J., Aug. 5, 1993, at A13; Bruce Fein, BCCI Trial with Trifles Light as Air, WASH. TIMES, Aug. 9, 1993, at E1; Kenneth N. Gilpin, Altman Verdict Is Stinging Loss for Prosecutor, N.Y. TIMES, Aug. 16, 1993, at A1; Kenneth N. Gilpin, Prosecution Hurt in Banking Trial: Judge Dismisses Bribe Charge in Fraud Case on B.C.C.I., N.Y. TIMES, July 30, 1993, at A1.

[10]See Keating v. Hood, 922 F. Supp. 1482 (C.D. Cal. 1996), habeas corpus dismissed, 133 F.3d 1240 (9th Cir. 1998); see also Court’s Ruling Favors Former S. & L. Chief, N.Y. TIMES, June 10, 1998, at D2.

[11]See DANIEL FISCHEL, PAYBACK: THE CONSPIRACY TO DESTROY MICHAEL MILKEN AND HIS FINANCIAL REVOLUTION 214-45 (1995); Amy Stevens, A Legal Theory Will Get Tested in Keating Trial, WALL ST. J., Aug. 1, 1991, at B1.

[12]See Sharona Hoffman, Criminal Sanctions in Accidental Oil Spill Cases — Punishment Without a Crime, 71 NEB. L. REV. 1033, 1033-48 (1992); L. Gordon Crovitz, Justice for the Birds: Exxon Forgot to Get a Hunting License, WALL ST. J., Mar. 20, 1991, at A23; Editorial, Fight On, Exxon, WALL ST. J., May 2, 1991, at A16.

[13]See Max Boot, Editorial, A Rotten Fate, WALL ST. J., Nov. 3, 1995, at A14; Editorial, Bad Apples, WALL ST. J., July 19, 1996, at A12.

[14] THOMAS HOBBES, LEVIATHAN (Michael Oakeshott ed., Collier Books 1962) (1651).

[15]Id. at 218; see also DANIEL E. TROY, RETROACTIVE LEGISLATION (1998).

[16]See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). But see William Winslow Crosskey, The True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. CHI. L. REV. 539, 539-66 (1947).

[17]See United States v. Carlton, 512 U.S. 26 (1994).

[18]See Steve Hamm et al., Microsoft’s Future: A Band of Powerful Foes Is Determined to Slow the Gates Juggernaut, But Microsoft’s Reach Already Extends Further Than You May Think, BUS. WK., Jan. 19, 1998, at 58; see also Paul Craig Roberts, Microsoft Is the Victim of a Legal Mugging, BUS. WK., Apr. 13, 1998, at 16; Paul Craig Roberts, Editorial, A Bill of Attainder for Microsoft, INVESTOR’S BUS. DAILY, May 18, 1998, at A38.

[19]See John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L. REV. 3, 8 (1978); Leonard W. Levy, Origins of the Fifth Amendment and Its Critics, 19 CARDOZO L. REV. 821, 832 (1997).

[20]See U.S. DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1994, at 461-63, 483-86 (Kathleen Maguire & Ann L. Pastore eds., 1995).

[21]Cf. LAWRENCE M. FRIEDMAN, AMERICAN LAW: AN INTRODUCTION 78, 88-92 (rev. ed. 1998).

[22]Cf. H. RICHARD UVILLER, VIRTUAL JUSTICE: THE FLAWED PROSECUTION OF CRIME IN AMERICA 157-76 (1996).

[23] United States Att’y Gen. Robert H. Jackson, Address at the Second Annual Conference of United States Attorneys 4-5 (Apr. 1, 1940) (transcript on file with the Library of Congress, Manuscript Division).

[24] Berger v. United States, 295 U.S. 78, 88 (1935).

[25]See Jackson, supra note 23, at 3, 7.

[26]See THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES (2d ed. 1979); DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).

[27]See Editorial, New Phone Tax, WALL ST. J., Dec. 9, 1997, at A22; Editorial, Phone Tax, Continued, WALL ST. J., Dec. 23, 1997, at A14; David Schoenbrod & Marci Hamilton, Congress Passes the Buck — Your Tax Buck, WALL ST. J., June 12, 1998, at A10.

[28]See The Contract with America: Scorecard, WASH. POST, Mar. 27, 1995, at A17; Helen Dewar, Senate Approves Line-Item Veto Bill, 69-29, WASH. POST, Mar. 24, 1995, at A1; Jerry Gray, ‘Lazy Fools,’ Says Byrd; Champions of Cutting Spending Gladly Hand the Ax to the President, N.Y. TIMES, Mar. 26, 1995, 4 (Week in Review), at 2; House Passes Line-Item Veto; Measure Approved on Reagan’s Birthday Faces Trouble in Senate, WASH. POST, Feb. 7, 1995, at A1; Katharine Q. Seelye, G.O.P. Set to Lead Congress on Path Sharply to Right, N.Y. TIMES, Jan. 3, 1995, at A1.

[29] 5 U.S.C. 551-559 (1994).

[30]See DOCUMENTS ON NAZISM, 1919-1945, at 195 (Jeremy Noakes & Geoffrey Pridham eds., 1975).

[31]Id.

[32]Cf. JOHN STUART MILL, Representative Government, in UTILITARIANISM, LIBERTY, AND REPRESENTATIVE GOVERNMENT 224-25 (J.M. Dent & Sons 1947) (1910).

[33] V.I. LENIN, A Contribution to the History of the Question of the Dictatorship, in COLLECTED WORKS OF V.I. LENIN 326 (4th Russian ed. 1980); see also PAUL CRAIG ROBERTS & MATTHEW A. STEPHENSON, MARX’S THEORY OF EXCHANGE, ALIENATION AND CRISIS (1973).


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