Authors: John Fund
One final example of Holder's selective investigation of leaks: on May 29, 2012, in the lead-up to the reelection of Barack Obama, the
New York Times
wrote a story disclosing the existence of the president's secret “kill list.” This was a list of Al Qaeda and Taliban terrorist targets personally selected by the president to be killed or captured.
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The details given in the article, which include discussions President Obama had with advisers as well as descriptions of counterterrorism meetings in the White House Situation Room, make it very clear that the “leak” of this highly classified operation came from the Obama White House.
But according to the House Judiciary Committee, it “is not aware of any Justice Department investigation into the leak of the targeted kill list.” Why would there be? This leak was obviously orchestrated by senior Obama aides in the White House for political theater as the president was campaigning, so he could show how tough he was in the war on terror. Holder allowed political considerations to intrude on his duty as the chief law enforcement officer of the United States to go after leaks of classified information.
Through his hiring of biased, hostile lawyers and his treatment of terrorists as ordinary criminals; his orchestrated, ideological attack on the intelligence community; and his highly selective prosecutions of government leaks, Eric Holder has weakened the national security operations of the Justice Department as well as helped President Obama manipulate the president's power as “an odious instrument for propaganda” according to Glenn Greenwald, a former columnist for
The Guardian
. Holder has helped the president ensure “that all embarrassing or incriminating information remains suppressed, and the only thing the public learnsâand the eager, grateful press amplifiesâare the informational crumbs doled out by the White House in order to glorify the leader. That's the very definition of state propaganda.”
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Joe Connor, whose father was killed in a criminal conspiracy by the FALN terrorists Holder helped pardon at the end of the Clinton administration, told one of the authors that he testified against Holder's confirmation in 2009 because it was clear to him that even in matters of national security, “Holder puts political gain above the safety of the American people he is sworn to protect,” and that he “did not have the values, judgment or character to be our attorney general.” That has been shown, according to Connor, by Holder's “insistence on trying al-Qaeda terrorists (who killed my father's godson among the thousands on 9/11) including KSM in U.S. civilian courts, his nonexistent investigation of the Benghazi terror attacks, and his quite literal playing of Russian roulette by providing weapons to Mexican narco-terrorists that resulted in agent Brian Terry's murder.” Conner says that “Holder's malfeasance, though thoroughly reprehensible, is no surprise.” He asserts that Holder's misconduct as attorney general has proven that what he, Connor, said back in 2009 was right.
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This is a damning indictment by someone whose family was twice victimized by terrorism.
Prosecuting American Businesses but Not the Administration
Nothing quite shows the unbridled hypocrisy of the Obama administration and prosecutorial abuse by the Holder Justice Department as does the attempted prosecutions of American companies under the Foreign Corrupt Practices Act (FCPA). The FCPA was passed by Congress in 1977 to prevent companies from bribing officials of foreign governments in “obtaining or retaining business.”
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But Congress designed the law to stop high-level bribery and corruption of foreign government officials; it was not meant to cover the low-level payments and gifts that are often routinely required in many Third World countries “to grease the wheels of bureaucracy.”
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Yet that is the type of corruption the Justice Department has pursued under dubious legal theories. When it has actually been forced to go to court by defendants unwilling to give in to the department's intimidation tactics, the Justice Department has often lost. DOJ's prosecutions have been dismissed due to prosecutorial abuse and other misdeeds by Eric Holder's prosecutors.
For the first two decades after it became law, the FCPA was a little-used statute. In 2000, there was just one prosecution under the law by the Justice Department. However, Lanny Breuer, Holder's subordinate and the politically appointed assistant attorney general of the Criminal Division, proclaimed that the FCPA would “be a focus for the Criminal Division” and one of its “top priorities.” As Mike Koehler, a leading expert on the FCPA, has said, Breuer spoke about the FCPA with almost “religious fervor.”
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Breuer said that the United States was “in a unique position to spread the gospel of anti-corruption, because there is no country that enforces its anti-bribery laws more vigorously than we do.”
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By 2010, Breuer was bragging about the government reaching a record twenty-three settlements with companies that altogether netted $1.8 billion in fines.
But at the very same time that the Holder Justice Department and Lanny Breuer were stepping up their enforcement of their version of the FCPA, the federal government itself was engaging in the very type of corruption that the law was intended to stop. As the
New York Times
reported in April 2013, “for more than a decade, wads of American dollars packed into suitcases, backpacks and, on occasion, plastic shopping bags have been dropped off every month or so at the offices of Afghanistan's presidentâcourtesy of the Central Intelligence Agency.”
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The tens of millions of dollars that flowed into Afghanistan was called “ghost money” by Khalil Roman, President Hamid Karzai's deputy chief of staff from 2002 to 2005, because “it came in secret, and it left in secret.” While the intent of the payments was to buy influence with Karzai, lawmakers, warlords, and bureaucrats, American officials quoted anonymously in the
New York Times
said that the cash has fueled corruption and that the United States was “the biggest source of corruption in Afghanistan.”
Neither Breuer nor Holder has ever commented publicly on the fundamental unfairness of the Justice Department's push to “spread the gospel of anti-corruption” by punishing those in the private sector whose actions don't even come close to the outright bribery engaged in by the U.S. government. Apparently, the rules that apply to ordinary American citizens don't apply to government bureaucrats or the White House. Breuer and Holder are not spreading “the gospel of anti-corruption” to their boss, Barack Obama, or other parts of the federal government like the Central Intelligence Agency. These prosecutions have been particularly ironic when one compares the tens of millions of dollars in cash bribes paid by the administration to the “defining feature” of enforcement against private industry under Breuerâallegations over relatively minor “items as bottles of wine, watches, cameras, kitchen appliances, business suits, television sets, laptops, tea sets, and office furniture.”
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What is almost as bad is that the Justice Department has threatened and intimidated many companies into settling claims under the FCPA. In fact, the Criminal Division's “success” in recent years has relied almost entirely on settlement agreements with corporations, exchanging an agreement “not to prosecute” for payment of a fine. These “Non-Prosecution Agreements” were reached by “risk-averse corporate actors” under “dubious legal theories that have never been subjected to judicial scrutiny.”
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Breuer defended the settlements by saying that without its new policy of avoiding criminal prosecutions with settlements, the government “faced a stark choice when it encountered a corporation that had engaged in misconductâeither indict or walk away.”
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Well, of course. That is the choice government prosecutors
should
haveâto indict or walk away. As Mike Koehler says, “Bringing criminal charges against a person (natural or legal) should not be easy. It should be difficult. Our founding fathers recognized this as a necessary bulwark against an all-powerful government, and there is no legal or policy reason warranting a change from such a fundamental and long-lasting principle.”
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Insulating its behavior from judicial scrutiny makes it much easier for Justice Department prosecutors to abuse their authority because it puts them “in the role of prosecutor, judge and jury all at the same time.”
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Even former attorney general Alberto Gonzales has criticized these settlements, saying that “the more that American companies elect to settle and not force the DOJ to defend its aggressive interpretation of the Act, the more aggressive DOJ has become in its interpretation of the law and its prosecution decisions.”
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In fact, when the Holder Justice Department has been forced into court, it has often suffered embarrassing defeats. Cases have been lost because of abusive behavior by its prosecutors and the FBI agents involved in the investigations, as well as accusations that the Justice Department withheld evidence and tried to mislead juries and courts. But while the targets of the Justice Department's unjustified prosecutions have been acquitted or had their convictions overturned, fighting the most powerful law enforcement agency in the country has ruined their businesses and bankrupted their personal lives.
One of the most graphic examples of these abusive FCPA prosecutions is the case that Lanny Breuer called “the largest single investigation and prosecution against individuals in the history of DOJ's enforcement of the FCPA.” In what came to be known as the “Africa Sting” case, the Justice Department tried to prosecute twenty-two executives and employees in the military and law enforcement industry for supposedly trying to bribe the minister of defense of an African country. The prosecutions resulted from an FBI sting operation called Operation Landslide, in which FBI agents and a federal informant posed as the representatives of an allegedly corrupt Gabonese minister named Ali Bongo.
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The informant was Richard Bistrong, described as “a drug-addled former law enforcement equipment salesman.”
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Bistrong “had a $15,000 monthly cocaine habit and routinely had sex with prostitutes.” The vice president of a police equipment company, he had been fired in 2007 when the company discovered that he had been bribing foreign officials and had accepted $1.3 million in kickbacks from suppliers.
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After he pleaded guilty to a violation of the FCPA, he agreed to help the FBI in Operation Landslide. He tried to interest executives at other companies in a $12 million contract to supply equipment for the presidential guard of Gabon. Bistrong worked with a supposed Frenchman named Pascal Latour, who was really an FBI agent whose French accent was so bad it was described by a defense attorney “as sounding like Inspector Clouseau's in the âPink Panther' movies.”
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As in prior sting operations like Abscam, which inspired the recent movie
American Hustle
, the FBI set up surveillance equipment in hotel rooms where Bistrong's meetings took place. But even though the sting was intended to catch executives who were willing to pay bribes to get the fake African business, neither Bistrong nor Latour ever “uttered the words âbribe' or âkickback' ” in their description of the dealâthey simply talked about the commission that would be required.
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What further hurt the government's case was a series of embarrassing text messages eventually turned over to the defendants in which the FBI agents and Bistrong talk about sex, prostitutes, and booty calls, as well as their excitement about going to Las Vegas, where they were going to close “the deal.”
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One of the texts from FBI agent Michael Dubravetz told Bistrong he was going “to have a good time in Vegas the two days before” Bistrong got there and that he would probably be married by then “to a woman of ill repute!”
In the press conference announcing the indictments and the arrests in Las Vegas, Lanny Breuer could not contain his excitement, joking that “this is one case where what happened in Vegas doesn't stay in Vegas.” He was right, but not in the way that he expectedâwhat didn't stay in Vegas was the misbehavior of the FBI agents involved in the sting and the abusive behavior of the Justice Department prosecutors. The text messages revealed that the FBI agents and Bistrong “basked in the positive press” of Breuer's press conference, saying it was “like an atomic mushroom cloud” and speculating on who would play them in a movie based on the sting.
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Ultimately, after two lengthy, expensive trials, all of the defendants were either acquitted or had the indictments dismissed by the judge or the Justice Department because of the weakness of the government's case, and doubts raised about the credibility of Bistrong, the FBI, and DOJ. In fact, in a very unusual occurrence, one of the jury foremen, a nonpracticing attorney, posted an anonymous blog describing the many problems with the government's case. The jury “with near unanimity found nearly all of the prosecution witnesses to be evasive and combative.” Moreover, the jury believed that the defendants in the case “had acted in good faith and the FBI/DOJ in bad faith.” The jurors were concerned, as any reasonable person would be, that Bistrong, the government's main witness, had “freely admitted on the stand more illegal acts than the entire group of defendants was accused of, yet was able to plead only one count of conspiracy to violate the FCPA.” “Prolonging this prosecution” would be “a waste of government resources,” the jury foreman said.
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When the final charges were dismissed by the Justice Department after their stinging losses in court, Judge Richard Leon of the U.S. District Court for the District of Columbia called these prosecutions “a long and sad chapter in the annals of white-collar criminal enforcement.” He criticized the “government's very, very aggressive conspiracy theory that was pushing its already generous elasticity to its outer limits.” By the time of the second trial, “that elastic snapped in the absence of the necessary evidence” to support the government's claims. He also criticized the way the Justice Department had investigated the case and handled its informant, Richard Bistrong. Judge Leon accused government prosecutors of “sharp practices that have no place in a federal courtroom,” which is a very critical comment by a federal judge.
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However, such “sharp practices” seem to have become a common occurrence with government prosecutors and their “win-at-all-costs” attitude since Eric Holder became the attorney general.
Judge Leon also pointed out that “unlike takedown day in Las Vegas” and the big public relations campaign conducted by Breuer and the Justice Department, there would be “no front page story in the
New York Times
or the
Post
. . . reflecting the government's decision today to move to dismiss the charges against the remaining defendants in this case.” Neither Lanny Breuer nor Eric Holder held a press conference to announce that their big prosecution had failed and that the claims they had made with great public fanfare were invalid. Nor did they make any public apologies or offer to reimburse the defendants for the enormous amounts they had spent defending themselves from an unjustified prosecution. And there is no indication that any of the lawyers or FBI agents involved were ever disciplined for their misbehavior.
Michael Madigan, a lawyer who represented one of the defendants, criticized the Justice Department for not recognizing that this “case was flawed from Day 1, both by its choice of a snitch (a despicable, dishonest 30 yr cocaine addict who admitted to taking kickbacks and stashed millions of dollars in Swiss bank accounts to avoid U.S. taxes), the âit's all just a game' commentary from the agents who disrespected the rule of law, and the structuring of the âsting' in its documents and taped conversations to make the Defendants think it was a legal transaction they were being asked to participate in.” His client, John Godsey, wanted to know “how our Justice system could have gone so awry and where he goes to get his reputation and two full years of his life back!”
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The lawyers representing another defendant, Lee Allen Tolleson, blamed the government for pinning “its entire investigation on a despicable character, Bistrong, who manipulated Federal Agents throughout the investigation, in order to save his soul for his misdeeds. . . . Now, where does Lee go to get back his good name? He is from a small Arkansas town with a GED and has a home education. His family has been devastated financially by this process. Two things have kept him grounded: his faith in God and his family.”
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