As a loyal Democrat, I might be the last person to argue that President Trump has gotten something right, even inadvertently. Still, in raising a possible bias by the FBI in the Russia collusion investigation, he has landed on a troubling issue.
Based on my personal experience and observations, federal and state investigators and prosecutors routinely abuse their power in their zeal for convictions. The absence of effective accountability permits them to do so, as prosecutors are shielded from civil lawsuits for misconduct under the Federal Tort Claims Act. As a result, testimony is often suborned; a felon whom the government wants as a witness is convinced to change his testimony by threatening the felon’s parents, siblings, or children; and most common of all, felons are bribed with a light sentence or a reduction in an existing prison sentence in exchange for their testimony.
I should know. I am the former governor of Alabama sentenced to prison for 88 months for something 113 former state attorneys general say has never been a crime. I was the victim of gross prosecutorial misconduct.
Most Americans would be surprised to learn that prosecutors are immune from suit for intentionally framing a defendant at trial. It has even been proposed that there is no freestanding constitutional “right not to be framed.” This was argued in Pottawattamie, Iowa vs. McGhee by prosecutors who were being sued by two African American men, Terry J. Harrington and Curtis W. McGhee, who spent nearly 25 years in prison for a murder they didn’t commit and were seeking damages for false imprisonment.
President Trump’s critique of the FBI may rightly be viewed as an attempt to discredit the investigation of Trump’s own potentially illegal activities. However, intended or not, the President has raised a serious question about due process, which Congress must address.
Think about it. There have been more than 1,500 exonerations over the last 20 years; 156 of them have been death row inmates. If there were not a problem, why would there be so many exonerations?
Prosecutors point out that they are charged with a duty to pursue their causes with zeal and argue that if they can be held liable for eliciting false testimony it would chill their desire to give their all for a conviction. But whose interests are served when a prosecutor chooses, knowingly, to seek a conviction he or she knows is corrupt and wrong? Certainly not the interest of the people. So I ask: Why should the duty to convict not be balanced by a duty to seek the truth? Or even just to refrain from suppressing the truth?
Allowing false evidence to be presented to a grand jury can set the guilty free or destroy the innocent. Indictments alone can destroy a career and ruin a life. Just ask former U.S. Senator Ted Stevens’s family. The Alaska Republican was brought to trial for corruption while he was running for reelection and was defeated eight days after his conviction. Federal Judge Emmet G. Sullivan subsequently dismissed Stevens’s ethics conviction and named a special prosecutor to investigate whether the government lawyers who ran the Stevens case should themselves be prosecuted for improperly withholding evidence.
Allowing false evidence to be presented to a grand jury can set the guilty free or destroy the innocent.
This is a problem that affects all citizens. The government obtains over 99 percent of the indictments it seeks. Why? It’s just too easy for prosecutors to secure indictments in a secret grand jury proceeding where no one is watching, there’s no accountability, and there’s no “self-correcting mechanism.”
Not to save President Trump (and here I should stipulate Robert Mueller is in no sense a rogue prosecutor), but to help balance the scales of justice, Congress must reform our broken system and build a greater degree of fairness into a process in which the “presumption of innocence” becomes more than a comforting and rhetorical slogan.
Congress should consider three safeguards:
- Because a grand jury is arguably the most critical stage of a criminal proceeding, targets should have the right to have counsel present, empowered to object to improper evidence or false testimony. These objections should be adjudicated by a magistrate; the same process as in a deposition.
- Congress must repeal the exemption of civil liability given to prosecutors by the Federal Tort Claims Act to deter deliberate, intentional, and willful misconduct.
- Congress must require all FBI interviews with witnesses and targets be recorded and those recordings be made available to the defense.
These changes would provide the sought-after “self-correcting mechanism,” increase public confidence in the fairness of convictions, deter government misconduct, and provide a greater measure of justice for U.S. citizens who have been framed by government investigators and prosecutors who abuse their power in their rush to obtain convictions.
I was convicted of bribery although there was no personal enrichment or personal benefit to me whatsoever. I was brought to trial one month before my reelection as governor by the Bush-appointed U.S. attorney, while the U.S. attorney’s husband, Karl Rove’s partner in Alabama, ran my opponent’s campaign. The Department of Justice has admitted to the U.S. Congress that the lead prosecutor in my case was emailing my opponent’s campaign manager giving him updates on my investigation. I lost my election seven days after my conviction.
Injustice occurred in my case as a result of a politically charged prosecution, as it could with Trump and other U.S. citizens. We need these reforms to protect against overzealous prosecutors and investigators and politically motivated prosecutions on both sides of the political divide.
Don Siegelman was the Democratic governor of Alabama from 1999 to 2003 and served his state before that as lieutenant governor, attorney general, and secretary of state. For more information on his case, go to www.free-don.org.