In a noteworthy speech at Hillsdale College to celebrate Constitution Day, U.S. Attorney
General Bill Barr addressed long-brewing concerns about the criminalization of politics, pointing out that “prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories.”
Unstated in his remarks is how the Obama Justice Department seemed to have egregiously expanded the abuse of criminal justice system tools against its political opposition and critics.
Barr noted bad players in the criminal justice system will continue to abuse power “to the extent the Justice Department’s leaders will permit it.” Moreover, these officials will continue to abuse their offices as long as there are no adverse consequences for their lawlessness.
The day following Barr’s speech, and in his first interview following his arrest for his involvement with the “We Build the Wall” project started by wounded Iraqi war veteran Brian Kolfage, Steve Bannon re-emphasized Barr’s point on Fox News’s Tucker Carlson Tonight.
The purpose of criminalizing politics is to punish and silence opposition. Bannon told Carlson, "[w]hat these guys wanted to do was criminalize political speech and make sure [he] didn’t go back to the campaign." He said that not only is he innocent, but he will remain outspoken during this election season despite the continued "headhunting of high profile political targets."
Regardless of whether Bannon is innocent or not, there is ample proof that the public has lost trust in the criminal justice system, and Bill Barr’s Hillsdale speech shows he knows that.
This upcoming term, the U.S. Supreme Court has the opportunity to show that it too must restore confidence in this system. It will decide whether to hear the case of Stephen E. Stockman v. U.S. Former Congressman Stockman’s appeal petition to the court filed late this past July is supported by four friend-of-the-court briefs, a rather substantial number at this stage, including one by noted constitutional scholar Professor John Eastman.
Stockman, an outspoken critic of the Clintons, the Obama administration, and disgraced former IRS official Lois Lerner, was sentenced to 10 years in prison on charges that he and his associates defrauded two donors into giving money to nonprofit organizations with ties to Stockman and his political future. As with Bannon, prosecutors charged Stockman with using donated funds on his personal expenses.
The Obama Justice Department empaneled at least three grand juries -- getting in its “batting practice” on this case -- before a fourth indicted Stockman.
Stockman’s associates may have done things that with better legal advice they might have refrained from doing, but they were still victims of Obama’s justice system that criminalized political activity.
One Stockman associate who testified against him at his trial recently wrote at American Thinker with cautionary remorse about being victim to the abuses: “During the Stockman trial … I saw [federal prosecutors] threaten people to comply with their demands to testify or else they would face prosecution.”
After closely examining Stockman’s case, I am wholly convinced he was the victim of what Bill Barr laments. The amicus brief I filed explains how the Stockman case is literally the criminalization of politics.
Stockman was prosecuted for unlawfully coordinating an “independent expenditure” between his campaign and a 501(c)(4) tax-exempt organization. The government lawyers’ argument presented to the Texas jury was wrong, however, because the nonprofit publication that was developed from the money donated was not an “expenditure” subject to regulation under the often-arcane Federal Election Campaign Act. Stockman should not have even been indicted for this.
As to the literal criminalization of politics, it got worse. The two donors were aware of the political nature of the nonprofit projects for which Stockman sought the donations. An issue in his trial was whether Stockman was honest in telling his two donors the funds would be used for lawful purposes.
The instructions provided to the jury about the lawful activities in which nonprofits may engage entirely omitted the fact that these organizations may spend funds on certain types of political activities ranging from voter education to very partisan advocacy naming candidates.
In other words, the jury was deceived into thinking Stockman lied to his donors about the lawfulness of their donations.
Stockman’s case also relies on a 2003 opinion in Madigan v. Telemarketing Associates written by the late Justice Ruth Bader Ginsburg that requires prosecutors to prove intent to commit fraud at the time nonprofit solicitations are made. Here, Ginsburg’s opinion and Barr’s observation about prosecutors relying on “the flimsiest of legal theories” merge in ways that should show Stockman’s innocence.
It will take more than just time for Bill Barr to weed out political abuses from the Justice Department. The Supreme Court could help in a big way if it were to take Steve Stockman’s case, and reverse his conviction for engaging in lawful political activity.
Mark J. Fitzgibbons is a fundraising law expert, and President of Corporate Affairs at American Target Advertising.
Hillsdale College Speech
criminalization of politics