“Henry. A SWAT team from Homeland Security just raided our factory!”
“What? This must be a joke.”
“No this is really serious. We got guys with guns, they put all our people out in the parking lot and won’t let us go into the plant.”
“What is happening?” asks Gibson Guitar CEO Henry Juszkiewicz when he arrives at his Nashville factory to question the officers. “We can’t tell you.” “What are you talking about, you can’t tell me, you can’t just come in and …” “We have a warrant!” Well, lemme see the warrant.” “We can’t show that to you because it’s sealed.”
While 30 men in SWAT attire dispatched from Homeland Security and the U.S. Fish and Wildlife Service cart away about half a million dollars of wood and guitars, seven armed agents interrogate an employee without benefit of a lawyer. The next day Juszkiewicz receives a letter warning that he cannot touch any guitar left in the plant, under threat of being charged with a separate federal offense for each “violation,” punishable by a jail term.
Up until that point Gibson had not received so much as a postcard telling the company it might be doing something wrong. Thus began a five-year saga, extensively covered by the press, with reputation-destroying leaks and shady allegations that Gibson was illegally importing wood from endangered tree species. In the end, formal charges were never filed, but the disruption to Gibson’s business and the mounting legal fees and threat of imprisonment induced Juszkiewicz to settle for $250,000—with an additional $50,000 “donation” piled on to pay off an environmental activist group.
What really happened at the Nashville plant?
A great American success story? Yes, but Gibson’s very success made it a fat target for federal prosecutors, whom Juszkiewicz alleges were operating at the behest of lumber unions and environmental pressure groups seeking to kill the market for lumber imports. “This case was not about conservation,” he says. “It was basically protectionism.”
Two months before the raid, lobbyists slipped some arcane supply-chain reporting provisions into an extension of the Lacey Act of 1900 that changed the technical definition of “fingerboard blanks,” which are legal to import.
With no clear legal standards, a sealed warrant the company has not been allowed to see too this day, no formal charges filed, and the threat of a prison term hanging over any executive who does not take “due care” to abide by this absurdly vague law, Gibson settled. “You’re fighting a very well organized political machine in the unions,” Juszkiewicz concluded. “And the conservation guys have sort of gone along.” Hey, what’s not to like about $50,000?
And this isn’t an isolated incident. Just ask Harvey Silverglate, Boston lawyer, activist, civil liberties advocate, and author of Three Felonies a Day: How the Feds Target the Innocent. As he explains, the Feds routinely take advantage of the vagueness of many of our laws by starting from the target and working backwards, selectively prosecuting people they want to go after by charging them with crimes they often don’t even know exist.
“We are in terrible trouble as a nation under law,” he says. “When you have a system predicated on jurisdictional interests rather than on specific, identifiable, understandable, definable violations of law, there is a great opportunity for tyranny.” As a result, just about any businessperson, especially in highly regulated industries, can be construed by a prosecutor to have committed three or four arguable felonies a day. “If for some reason the authorities are eyeing you and they look closely enough at your daily activities, they can find something. That makes us all very vulnerable.”
Federal criminal law is not bound by the accepted rules of common law. Congress, the courts, and prosecutors can criminalize everyday conduct without having to prove that the accused intended to violate a known legal duty. That intent used to be fundamental to the mens rea required for criminal liability. It no longer is, and this is a direct result of the mushrooming administrative state in which we live. The convoluted content of many laws implemented through regulation aren’t even clear until after there’s a guilty plea or conviction, essentially giving prosecutors a blank check. Throw unchecked prosecutorial discretion into the mix and you have a recipe for legal nightmares straight out of Kafka. “This is the great flaw in the federal criminal justice system. We didn’t really see the flaw in all its dangerous, florid iteration until the mid 1980s, when federal prosecutors began to take advantage of this gigantic hole.”
This is neither a Democratic problem nor a Republican problem. Abuse of justice by federal prosecutors has ballooned under both parties. Until the American people wake up to the threat and demand change, things will only get worse.