Overzealous and possibly overtly biased law enforcement is an issue of serious concern.
In the case of President Trump’s former national security adviser Michael Flynn, notes from a senior FBI official indicated that agents discussed the objectives of their 2017 meeting with the new national security adviser and whether the goal was to “get him to lie so we can prosecute him or get him fired.”
FBI notes later that same year also indicated that the bureau was about to close its investigation into Flynn following that meeting, noting there wasn’t any “derogatory” information linking Flynn as a Russian agent during the 2016 presidential campaign. However, senior FBI officials reversed the recommendation and kept the investigation open at the urging of FBI agent Peter Strzok, who had sent anti-Trump text messages in 2016.
In other cases, overzealous prosecutors with seemingly uncontrolled power have been found to criminalize routine political and business behavior or overstep in other ways during the prosecutorial process. For example, the late Republican Sen. Ted Stevens of Alaska was indicted in a political corruption case for failing to report certain gifts properly. And shortly after he was found guilty, he lost his reelection campaign in a stunning defeat.
On April 7, 2009, U.S. District Judge Emmet Sullivan voided the conviction and dismissed the case, citing prosecutorial misconduct.
In 2011, U.S. Attorney Ron Machen began investigating Washington, D.C., Mayor Vincent Gray for campaign-related corruption. The investigation hung over the mayor throughout his entire term in office. In a carefully orchestrated press conference just 30 days from the 2014 primary election, Machen hinted to reporters that an indictment of the so-called corrupt mayor was forthcoming. One month later, Gray lost his election in a stunning defeat.
One year later, after Gray had been voted out of office, Machen quietly stepped down from his position as U.S. attorney. When the new U.S. attorney finally had a chance to review the nearly five-year investigation that destroyed the mayor’s political career and reputation, he closed the case. The nightmare was finally over, but the damage was already done. Gray was no longer mayor.
Overzealous prosecutors with uncontrolled power don’t just criminalize the routine practice of politics and government — they also target successful businesses and corporations.
In 2002, prosecutors charged the accounting firm Arthur Andersen with obstruction of justice for the shredding of documents related to their work with the giant energy company Enron. As a result of the conviction, 28,000 Arthur Andersen employees lost their jobs.
But in 2005, the U.S. Supreme Court in a unanimous decision overturned Arthur Andersen’s conviction. The trial was a sham, but again, the damage was already done. Tens of thousands of people had become unemployed.
In 2009, Sholom Rubashkin (CEO of Agriprocessors, the largest kosher meat processing plant in the United States) was convicted of bank fraud. The conviction not only sent Rubashkin to jail with a 27-year sentence, but it also destroyed his successful business. In the end, Agriprocessors filed for bankruptcy, and lenders lost $27 million.
On Dec. 20, 2017, Trump commuted Rubashkin’s sentence after lawmakers on both sides of the aisle, former law enforcement officials, and legal experts argued that his case was riddled with prosecutorial misconduct.
Now, there is the issue of prosecutors with seemingly uncontrolled power who are trying to criminalize the health supplement industry and pro-hormone muscle growth.
In 2014, President Barack Obama signed the Designer Anabolic Steroid Control Act — legislation designed to prevent specific steroid products from being marketed as nutritional supplements, including false labeling. The act immediately placed 25 steroids on a list of Schedule III substances while also allowing future ingredients to be added quickly (within 30 days). Legislators stopped short, however, of allowing unlisted substances to be prosecuted and rejected several bills to this effect.
However, the circumstances surrounding the legislation are suspicious. It was voted on in the Senate in a surprise, last-minute voice vote late at night and at the end of session. In addition, the language is so broad that anything can be added to the banned substance list at any time — a point of great concern to supplement companies.
Unlike other, more dangerous drugs, steroids are not as addictive as other drugs. According to the Drug Enforcement Administration, they don’t fit any of the criteria to be listed at all. They are also far less deadly than other drugs. And as many have argued, if the government is going to target and criminalize steroid use, then why not also include tobacco and alcohol use as well?
Think about this. Major League Baseball is a sport that was hit hard by stories of steroid abuse, and several players, including Roger Clemens and Barry Bonds, went to trial. But no one ever went to prison.
Barry Bonds was convicted of obstruction of justice and was sentenced to 30 days of house arrest and two years of probation. In 2012, Roger Clemens was acquitted of his charges due to prosecutorial misconduct. The rest of the major league players simply faced fines and suspensions. You and I footed the bill for all of this, at a cost of around $50 million to prosecute Bonds and $3 million to prosecute Clemens. And those are just the costs we know.
It has even been estimated that federal prosecutors spent $120 million investigating baseball players. That amount should anger every taxpayer. In 2005, Congress spent 151 days in session, eight of which were spent discussing steroids in sports (more than any other topic). What did that cost the taxpayer?
The federal government, led by prosecutors with lots of power, will continue to target health supplement companies with their criminalization of pro-hormone, elite-level products — threatening to shut down companies and send their CEOs to prison. You and I are paying for all of this directly through our taxes and indirectly through our government wasting time.
As the saying goes, “power corrupts, and absolute power corrupts absolutely.” And so long as DASCA is the law of the land, prosecutors can act like big-game hunters, targeting every health supplement company for things that haven’t always been crimes.
Mark Vargas (@MarkAVargas) is a tech entrepreneur, political strategist, criminal justice reform advocate, and contributor to the Washington Examiner’s Beltway Confidential blog. From 2007 to 2010, he served as a civilian in the Office of the Secretary of Defense.
