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CONVICTION MACHINE © 2020 by Harvey A. Silverglate and Sidney Powell All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York, 10003. First American edition published in 2020 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax exempt corporation. Encounter Books website address: www.encounterbooks.com Manufactured in the United States and printed on acid-free paper. The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48‒1992 (R 1997) (Permanence of Paper). FIRST AMERICAN EDITION LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Names: Powell, Sidney K., 1955– author. | Silverglate, Harvey A., 1942– author. Title: Conviction machine : standing up to federal prosecutorial abuse / Sidney Powell, Harvey A. Silverglate. Description: New York : Encounter Books, 2020. | Includes bibliographical references and index. | Identifiers: LCCN 2019025112 (print) | LCCN 2019025113 (ebook) | ISBN 9781594038037 (hardcover) | ISBN 9781594038044 (ebook) Subjects: LCSH: Prosecution—United States. | Public prosecutors—United States. | Criminal justice, Administration of—United States. Classification: LCC KF9640 .P69 2020 (print) | LCC KF9640 (ebook) | DDC 345.73/01262 —dc23 LC record available at https://lccn.loc.gov/2019025112 LC ebook record available at https://lccn.loc.gov/2019025113 CONTENTS Preface Chapter One CATCH 22 What Talking to the FBI Can Do to You Chapter Two THERE’S NOTHING GRAND ABOUT GRAND JURIES Except Their Size Chapter Three ACTS OF GOD Discovery and the Hide-and-Seek Problem Chapter Four WHAT DOES THE LAW REQUIRE OF US? The Conundrum of Criminal Intent Chapter Five PLEA BARGAINING Dancing with the Devil Chapter Six AN OFFER HE CAN’T REFUSE Use Immunity Statutes—Not Backroom Deals—to Compel Testimony Chapter Seven PROSECUTORIAL MISCONDUCT Who Will Prosecute the Prosecutor? Chapter Eight WHERE HAVE ALL THE JUDGES GONE? Federal Courts Have Supervisory Power over Federal Criminal Justice, and It’s High Time They Used It Chapter Nine ONCE IS NOT ENOUGH Restore habeas corpus and coram nobis, Repeal the Antiterrorism and Effective Death Penalty Act of 1996 Coda ACTION ITEMS FOR CRIMINAL JUSTICE REFORM Acknowledgments Appendices Notes Index PREFACE Appalled by the terrible injustices she had recently witnessed in our federal courts, Sidney Powell, a former federal prosecutor, published Licensed to Lie: Exposing Corruption in the Department of Justice in 2014.1 Powell did not want to write Licensed to Lie. She was compelled to do so. The book reads like a legal thriller, but sadly it’s true, and it names the very powerful people who promoted their own interests by abusing their powers as federal prosecutors. They made up criminal charges, hid evidence, and lied to judges to win convictions. In the process, they destroyed companies, jobs, families, careers, and lives, contributing to an erosion of Americans’ faith in our criminal justice system, while simultaneously propelling themselves to positions of great power and prestige in the government and in private practice. Americans have recently witnessed the perhaps unprecedented abuse of our federal law enforcement agencies, especially the FBI and the Department of Justice, to target the opposition political candidate, morphing into an effort to cripple President Donald Trump upon his unexpected election in 2016. In the process, the FBI and the special counsel, Robert Mueller, targeted not only the president but his closest associates and advisors, looking for anything that might be “pinned” on them. But the long- awaited Mueller Report found no “collusion” between Russia and anyone in the Trump campaign, and it did not recommend prosecution for obstruction of justice. Evidence is coming to light by the day revealing that the entire “Russian collusion” and obstruction narratives were a concoction of the political opposition and high-ranking officials in what used to be our most trusted (at least by many) law enforcement institutions. However, abuse of prosecutorial power is hardly a partisan phenomenon. It is systemic. Eighty years ago, Attorney General Robert H. Jackson warned against this very abuse of power. He spoke to all the United States attorneys assembled before him in the great hall of the Department of Justice. In 1940 the world was in turmoil. It was a dark time, but his words are still inspiring to those of us who believe in the rule of law. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done—wanted crime eliminated— but also wanted the best in our American traditions preserved. Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor. • • • Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. • • • If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases