photo by Flickr user Scott
Last week, I wrote in this space about the advisability of eliminating the Bureau of Alcohol, Tobacco, Firearms and Explosives in the aftermath of several scandals, including a semi-secret lawsuit over cigarette smuggling and the well-known “Fast and Furious” debacle.
That post drew thoughtful responses from two former border patrol officers and a former FBI agent. The commenters wrote to underscore a position I have long held: that, in the Obama administration, malfeasance by insiders at all levels went unpunished while innocent outsiders were routinely prosecuted for political purposes.
The former FBI agent, John Shipley, wrote that he was wrongfully convicted in a case related to a firearm recovered in Mexico. I do not have firsthand knowledge of Shipley’s case, so I am not prepared to weigh in on whether the jury’s verdict was incorrect or unsupported. But I can observe that his story fits an all-too familiar pattern in the previous administration’s actions. Behavior that is not commonly thought to be criminal, but which was undesirable in the administration’s opinion (or unpopular with its political base), was prosecuted as a crime in order to make a point. In Shipley’s case, the result was a conviction.
Shipley says he was an amateur gun collector who bought and sold guns to finance his hobby. Prosecutors said he was an arms dealer, and therein lay his alleged offense. How many full-time FBI agents have time to run a gun dealership on the side? And how many individuals in law enforcement, at all levels, buy and sell guns from time to time because they like to trade or collect them?
As a reminder, Eric Holder was held in contempt of Congress in 2012 over his failure to turn over documents related to Fast and Furious. He claimed the contempt citation was “the regrettable culmination of what became a misguided – and politically motivated – investigation during an election year.” Considering Holder’s record by the time he left office, the criticism was deeply ironic.
Nor was the administration’s tendency to turn undesirable behavior into criminal behavior confined to the ATF. Howard Root of Vascular Solutions did not think he was committing a crime – for the simple reason that he wasn’t, as a jury found last year. But lack of wrongdoing did not stop the Obama Justice Department from trying to label him a criminal because, as CEO of a medical device company, he made an appealing target.
The government’s case hinged on whether and to what degree health care companies may truthfully inform doctors about “off-label” uses (that is, uses unapproved by the Food and Drug Administration) for drugs or devices that they sell. The government accused Vascular Solutions, and Root in particular, of having used such an off-label application to promote sales of one of their products.
No doubt the Justice Department was looking for a big cash settlement, a plea bargain and a news conference at which they could crow about their victory. Instead they found a man who was willing to fight to defend his reputation and that of his company, and who in the process laid bare the venality – or maybe the sheer stupidity – of the administration’s legal team. My money is on venality, however.
Root won his case, but his company spent $25 million building a defense and five years fighting the groundless criminal prosecution. Root subsequently decided he would rather step down from the company he co-founded than continue to face the risks posed by the government’s aggressive stance toward not only publicly traded companies, but specifically their executives.
We saw this politicized, overly aggressive stance again and again throughout the administration. You could see it not only in Holder, but in his successor Loretta Lynch, who became famous for meeting clandestinely with Bill Clinton while investigating his wife, who was running for president. You could see it in Mary Schapiro of the Securities and Exchange Commission, who called for criminal prosecutions even if no provable crimes were committed because otherwise “the world won’t understand.” You could see it in Lois Lerner of the Internal Revenue Service, whose inappropriate scrutiny of 501(c)(4) organizations was chalked up to poor management rather than anything worth prosecutors’ time. These and a host of others personified the former administration’s philosophy that “justice” meant whatever they thought it should mean, regardless of what the laws said.
It all culminated when Sally Yates – the same Sally Yates who wrote a 2015 memo that demanded the prosecution of executives like Howard Root in order to make a point – ordered Justice Department lawyers not to represent their client, the United States of America, in defense of newly sworn President Trump’s executive order on immigration.
In that case, at least, justice was ultimately served. Yates was sacked and the Justice Department resumed its proper role. When federal courts then ruled against the president, it was a decision based on the legal merits as those judges interpreted them, not based on one side failing to show up to argue its case. Neither Yates nor anyone else of consequence in the former administration’s legal battalion ever seemed to understand that justice is supposed to be dispensed evenhandedly, rather than by trying to kneecap the other side.
These people were not in the justice business. They were in the business of extorting pleas and settlements, and ruining lives in the process. I often found it stomach-turning to watch, and I couldn’t wait to see them go. Although I am apt to be disappointed, I hope never to see many of those folks in public life again.