Book Review: Licensed to Lie

Sidney Powell shot to attention in the aftermath of the November election. Her no-nonsense glare, her towering demeanor, and her earnestness made many of us instant fans. As she circulated in the press her credentials were belittled as simply “General Flynn’s lawyer.” Her resume is much longer than that, and her history of relentless pursuit of truth and justice should make any reasonable person believe her when she stands up for something.

Her book, Licensed to Lie, Exposing Corruption in the Department of Justice, written in 2014, chronicles her experiences with the maneuverings of the Justice Department during the aftermath of the fall of Enron, along with a congruent story of the trial of Senator Ted Stevens. The most incredible parts of the stories, the suspicious deaths of Sen Ted Stevens and Enron exec Cliff Baxter are left mostly unexplained. Her speculation on them seems rational, but this is not a whodunit story. The bulk of her tale is the specific ins-and-outs of prosecutorial misconduct so egregious that it made legal ethics expert Bill Hodes insist on personally overseeing complaints against the offending lawyers who eventually soared to the heights of Obama-era power. (Spolier alert- the complaints were all ignored and rejected).

The book mostly details her effort as defense for Jim Brown, a mid-level Merrill Lynch employee who testified at a Grand Jury that he advised against a certain deal Merrill did with Enron. He understood the deal to be of a certain kind (the deal is relatively difficult to follow without technical know-how but involved the question of whether or not Enron guaranteed to buy back some barges they were getting Merrill to invest in).

The prosecutors eventually proved in court that Brown’s testimony was wrong because the deal was in fact guaranteed, when Brown believed otherwise. So they sent him to prison for perjury and obstruction of justice. Later we learn that the treasurer of Enron had told the FBI that there was no guarantee (agreeing with Brown’s testimony), but he was not brought in as a witness, he was threatened by the Dept. of Justice to prevent him from participating in Brown’s defense, and they withheld or misrepresented to defense counsel all material information about the treasurer’s testimony and interview.

To prove the opposite story was true in order to achieve the resulting convictions they desired, the prosecutors used a combination of hearsay, evidence suppression and false testimony. The mid-level Merrill trials were just stepping stones to build the case against the Enron heads that the government really wanted to roll. Unfortunately, as Powell explains, the evidence is always in the hands of the prosecution.

The FBI interviews the witnesses and collects evidence through warrants and investigation. The lawyers take testimony. It is a longstanding rule that they should share all this information with the defense. The power is entirely in the hands of the government. The Supreme Court requires the authorities to provide all the evidence to the other side in order to ensure that justice is served, known as the Brady rule by the name of the case law that set the rule. By abusing the trust of the courts in their compliance with this Brady requirement, the government lawyers were able to bury very important truths.

As a side-note, I remember Powell describing this kind of conviction and the Dept. of Justice’s weapon de jour in political take-downs in the Trump era. She explained how they interview witnesses and get them to testify to something they believe is true. Then they manipulate or produce evidence contradicting the “truth” that the person genuinely believed. This allows them to prosecute that person for perjury (lying under oath) and obstruction of justice (misleading investigators), when the person had no intent to do so. This element of criminal intent is usually required to convict someone of a crime, but by taking out “intent” these prosecutors are able to make someone a criminal who otherwise is trying to be honest.

Such was the case with General Flynn. When he originally was interviewed by the FBI they said he thought he was telling the truth. He was misremembering something they had some proof of on tape. (And they obtained that tape by lying to a judge to get a warrant to secretly listen to conversations of the Trump campaign at Trump. So...there’s that.) Bam. He’s a criminal.

She also shows how this same tactic was used against the accounting firm Arthur Anderson, which was ruined by the criminal charges brought against them for shredding documents in a way that was not actually a crime. They even had alternate copies of shredded documents or other methods of producing any required evidentiary material. There was no criminal intent (although it did look bad, but that’s a PR problem and not a criminal matter). The Supreme Court overturned the result in the Anderson prosecution in an unusual unanimous decision, but not in time to save the thousands of jobs and dollars lost by the misguided prosecution.

In times past, like when Sidney Powell herself worked as an assistant U.S. Attorney, the job of the prosecutor was not to win at all costs, but rather to see justice served. She says, “Having represented the United States in 350 criminal cases, I knew that it was rare for someone to be innocent of federal criminal charges. Neither I nor any of the many US attorneys or assistant US attorney’s with whom I had worked would put someone through the life-changing ordeal and anxiety of criminal charges unless we were sure they were guilty and the evidence was strong.” (p.71)

She continues “I knew from the few criminal defense cases I had accepted in recent years that the government did make occasional mistakes. For some reason, the Department of Justice seemed to be making them more and more frequently.”

In the case of the Enron Task Force and subsequent Dept. of Justice Criminal Division leadership in the Sen. Stevens case, a new breed of US attorneys is emerging who are set on glorifying themselves (or perhaps operating on behalf of other more nefarious interests)

The bulk of the book is in-depth descriptions of the legal arguments, seemingly taken verbatim from trial transcripts, descriptions of the many players, and a scrupulous accounting of her efforts to free her client from the grip of an undeniable miscarriage of justice. Her dismay is palpable. At every turn she encounters misrepresentations, unfair maneuvering, and what essentially seems to be harassment by the assigned prosecutors. Her innocent client Brown is even seemingly dragged back to a second trial after serving time in prison. The letter agreement from the government that he can be released on time-served after a slap-down by the Fifth Circuit is later ignored when the government goes back on its word and schedules a retrial. Only by investigating the proposed witnesses on a hunch does Powell discover that the trial is a ruse, and the government isn’t actually planning to prosecute him again. They are simply playing a game and aiming for maximum pain since her client persists in claiming innocence.

While the play-by-plays including Supreme Court arguments and esoteric references to case law might make this book too technical for an average reader, those with a legal background will be riveted by the twists and turns that Powell endures in trying to free her client.

Palpable throughout the whole ordeal is Powell’s disillusionment in the system that she loves. Her belief in the goodness of the judges and the wisdom of the court is varnished as they repeatedly ignore the truth and refuse to hold the wrong-doing attorneys accountable. She clearly is used to reason and legality triumphing. Instead she watched as lawyers who got results by running over civil rights were elevated up the ladder of political success as a reward.

Throughout the book she names names of the offenders. She concludes her book by saying, “The games and tactics of Friedrick, Ruemmler, Weissmann, Caldwell, and others on the Enron Task Force should never have been tolerated by the Houston federal judiciary or by the Fifth Circuit--much less reinvigorated by Friedrich and Glavin as heads of the Criminal Division of the Department of Justice to pervert the trial of a United States Senator. There is no telling how many others have been or will be wrongly convicted as this cabal of corrupt cronies ambitiously climbs and weaves through the highest ranks of the Department of Justice, the FBI, and the White House--in between their powerful partnerships in some of our country’s most prestigious and influential law firms [which work as a revolving door from politics]. What happened to the defendants in this book can happen to anyone. Blind judges do not render blind justice. If it were your husband, your sister, your child on trial, what should the rules be?...Should those who are supposed to enforce the laws be required to abide by them?”

This question has become a refrain for many of us. Is there any accounting for those in power? Can a governor supersede the rules passed by a legislature contravening constitutional law? Can a Secretary of State destroy evidence of wrongdoing without any criminal accountability? Can a court turn away case after case alleging fraud for supposed technicalities when the end result is a total failure of the judicial system to provide any meaningful forum for evidence to be heard?

We the People demand accountability. We demand our rights be respected. We demand that we all be treated equally under the law. We demand that our system of justice return to blindness, without being twisted either toward political persecution or away from accountability for the powerful elite.

We the People have a powerful ally in Sidney Powell. She is furious. She is fighting. She is right. I can’t wait to see what she does and says next.