The Sihpol acquittal from last week has generated much needed criticism of the demagogic ways of New York AG Eliot Spitzer, including this Wall Street Journal ($) editorial the day after the acquittal. While the WSJ editorial rightly criticizes Mr. Spitzer’s questionable tactic of criminalizing merely questionable business practices, the editorial concludes with the following observation:

One lesson here is that juries, forced to make a decision about a defendant’s fate, want to make sure that the alleged behavior is in fact criminal. Prosecution by press release won’t do in court.
The Justice Department has understood this, and has built a record in business fraud cases that has held up in court on Enron, WorldCom and Adelphia. Mr. Spitzer, by contrast, has used New York’s overbroad Martin Act to prosecute financial cases of dubious legal merit. Business fraud deserves to be prosecuted, but the criminalization of widely accepted business practices ex post facto is both unjust and offensive to the rule of law.

Well, that dubious compliment of the Justice Department’s equally egregious conduct toward criminalizing business practices did not sit well with Harvey Silvergate, a Boston civil rights attorney and author who is working on a book on abusive federal prosecutions. In this WSJ letter to the editor, Mr. Silvergate notes the following:

The reason for the Justice Department’s success is that the federal courts have aided and abetted in contorting the law by affirming dubious convictions for dubious crimes. The Supreme Court’s welcome reversal of the Arthur Andersen conviction, one hopes, signals a counter-revolution rather than a mere blip in the continuing degradation of the federal criminal code.

However, in my book, a more insightful criticism of the WSJ’s misguided compliment of the Justice Department comes from Ben Edwards, former American business editor for The Economist magazine, who wrote the following letter to the WSJ editors, which the WSJ has chosen not to publish, at least as of yet:

Sirs,
Your otherwise commendable editorial calling New York Attorney General Eliot Spitzer to account for his abusive disregard of the rule of law falls once again into what has become a most unfortunate and unthinking habit of mind regarding the rights and wrongs of the Justice Department’s wider war on white-collar “crime”.
While damning Mr Spitzer, you lavish praise on those wise folk at Justice for building “a record of business fraud cases that has held up in court”. Two thoughts spring to mind.
First, just as with Mr Spitzer, most of the actions the Justice Department takes against white-collar defendants never end up in front of a jury of peers. Federal prosecutors use the threat of ultra-long jail sentences to bludgeon plea-bargain agreements from their victims instead. Who, in this climate, fancies their chances of acquittal in court, no matter how persuasive their defense?
Second, some of the cases that have reached the courts seem notable for reasons other than fine prosecutorial legal work. So far, we have had willful and abusive misinterpretation of the law (Arthur Andersen), absurd and dangerous criminalization of civil disputes (the Enron broadband trial) and stunning abuse of hearsay and other evidentiary rules to damn defendants with whispers and slurs (the Enron-related “Nigerian Barge” trial). No doubt, as the nation’s temperature cools, more of these convictions will be overturned on appeal.
Of course, federal judges share some of the blame for failing to restrain this appalling government behaviour. But surely the thundering editorialists at the Wall Street Journal can muster the courage to stand up to the howling lynch mob and call this for what it quite nakedly is: a witch hunt.
Ben Edwards
Stamford, CT

Amen!