Charles Dickens might as well have been talking about the federal extortion prosecution of Marty Walsh aides Kenneth Brissette and Timothy Sullivan when he penned those immortal words uttered by Mr. Bumble in Oliver Twist:
“If the law supposes that,” said Mr. Bumble… “the law is a ass – a idiot. If that’s the eye of the law, the law is a bachelor, and the worst I wish the law is that his eye may be opened by experience – by experience.”
Federal District Judge Leo T. Sorokin on March 22nd put to rest the U.S. Attorney’s Office’s long simmering legal war against Boston labor unions and the Walsh administration with the dismissal of the charges against Brissette and Sullivan. The duo was accused of threatening to withhold permits from organizers of the 2014 Boston Calling Music Festival if the organizers did not hire union workers.
Yet nobody is predicting that the Feds have at long last stopped abusing vague federal “anti-corruption” statutes to tyrannize federal, state and local pols who undertake the difficult, and these days often legally risky, task of engaging in political life. The Supreme Court has thus far failed to take the necessary step of throwing these statutes out as hopelessly and irredeemably unconstitutionally vague. (These statutes seem fit for only one purpose – terrorizing state and local officials.) Instead, the high court, and the lower federal courts (such as the District Court on which Judge Sorokin sits), keep trying to assign ever-narrower interpretations to statutes that are impossible to understand, much less to apply fairly to real life politics.
The history of this latest prosecution of Sullivan and Brissette is illustrative. Both have labor union backgrounds, as does their boss, a former labor union president who was elected in 2013 with strong union support. When the administration tried to pressure the organizers of the Boston Calling festival to hire some union help to work at the event, the organizers found a sympathetic ear in the U. S. Attorney’s Office with their complaint that the pressure amounted to illegal strong-arming (“extortion” in the language of the law, “blackmail” in more common parlance).
Democrat Barack Obama’s United States Attorney, Carmen Ortiz, indicted the men after a grand jury investigation that for a time seemed likely to engulf Mayor Walsh himself. Republican U.S. Attorney Andrew Lelling continued to press the case, suggesting that federal prosecutors’ overreach is not a partisan political activity. Rather, it is part of a long-term phenomenon of federal prosecutors exercising excessive and often unconstitutional power over civil society, and particularly over local, state and federal officials engaging in ordinary governmental actions.
This abuse of vague federal criminal statutes until recently had the full support of regional and national news media who were blinded by the specter of clean federal prosecutors, aided by much-heralded FBI agents, going after “crooked pols.” But even as the Supreme Court has continued to counsel against such overzealousness, most recently by overturning in 2016 the corruption conviction of former Virginia Governor Robert McDonnell, the prosecutions have continued.
Judge Sorokin, after giving the Boston U.S. Attorney’s office an opportunity to withdraw or revise its indictment, finally wielded the coup de grace and dismissed the indictment on March 22nd. He pointed out that since neither Brissette nor Sullivan had “obtained” any property as a result of the pressure they exerted on the employers to hire union labor, they could not be said to have extorted anyone or anything. Underlying Judge Sorokin’s order was the notion that a pro-labor mayoral administration is free to pressure private employers to hire at least some union labor, provided that no violence is involved and no money sticks to the fingers of the pols. The day after Sorokin’s dismissal order, Lelling and his underlings, Assistant U. S. Attorneys Laura J. Kaplan and Kristina E. Barclay, filed their notice of appeal to the Court of Appeals for the First Circuit, which almost certainly will affirm Judge Sorokin.
Interestingly, Boston media opinion columnists, despite the papers’ long-time news and editorial stances against “government corruption,” have come to recognize that “politics as usual” can serve a salutary purpose in a free society, and not everything that might cause a journalist to hold his or her nose can nor should necessarily be dubbed as “corrupt.” Thus, for example, Boston Globe columnist Scot Lehigh on March 23, 2018, was highly critical of the feds for
“trying to send two people to prison for pushing a music festival organizer to hire some union workers, even though they didn’t make any overt threats as part of that effort or receive any personal gain from that action.”
A couple of days later, Globe columnist Adrian Walker said much the same thing:
“This case began as a supposed example of excessive influence-peddling inside City Hall. But it will be remembered as an example of federal overreach. Two defendants have paid a painful price for that excess.”
And on the same day of Walker’s column, the Boston Herald’s Bob McGovern reviewed the recent history of the U.S. Attorney’s Office, under Democratic control, when prosecutors last year lost, in the U. S. Court of Appeals in Boston, an effort to imprison state Probation Department head John J. O’Brien and his two top staffers for the supposed federal crime of “patronage hiring.” McGovern recounted as well last year’s jury acquittal of four Teamsters charged with extorting a “Top Chef” filming crew in 2014 to force an employer to hire union members.
And what the opinion writers understand, likely will now be comprehended by the news reporters who cover federal prosecutors and the courts.
Nobody can predict how long it will take, and how many more unsuccessful prosecutions will be undertaken, before federal prosecutors will get the message that it is time for them to seek out another vague and malleable criminal statute to use in their pursuit of innocent civilians and government officials. The old reliable extortion statute just ain’t what it used to be, thanks to the federal courts. Prosecutors who wish to add notches to their belts are going to have to rely on other vague statutes, of which there are, alas, a few remaining.
Hell, the news media has figured out the line between indictable criminal conduct and actions that merely offend reporters’ and editors’, and prosecutors’ sensibilities. Perhaps there is hope that the federal conviction machine may be slowing down, or at least focusing on real rather than imagined crime.
Harvey Silverglate, a criminal defense and civil liberties lawyer and WGBH’s Freedom Watch columnist, is the author of Three Felonies a Day: How the Feds Target the Innocent. He thanks Nathan McGuire for research and editorial assistance.