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November 5, 2009

Bernie Kerik enters plea deal providing him a different perspective on homeland secutiry

As detailed in this New York Times article, Bernard Kerik today pleaded guilty to eight charges including tax fraud and lying to White House officials. Kerik, who lead the NYPD through the 9/11 attack and was taped in 2004 to head the Department of Homeland Security, was able to secure a plea deal with a specific sentencing recommendation:

The prosecution and the defense recommended that the judge, Stephen C. Robinson, sentence Mr. Kerik, who faced up to 30 years in prison on the most serious charge, to 27 to 33 months. The judge, who is not bound by the recommendation, set sentencing for Feb. 18. Mr. Kerik was also ordered to pay restitution of nearly $188,000.

The tax fraud charges stemmed in part from Mr. Kerik’s acceptance of $250,000 in renovations to his Bronx apartment, provided by a company accused of having ties to organized crime. He also admitted lying to White House officials, denying improprieties, while he was being interviewed to be head of the Department of Homeland Security.

November 5, 2009 at 11:02 PM | Permalink


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Am I the only one who has problems with lying to government officials being a crime?

Posted by: Soronel Haetir | Nov 5, 2009 11:44:18 PM

No, Soronel. I too have a problem with the lying-to-bureaucrats tack. It's deplorable, particularly considering the sneaky, sinister way it's typically deployed.

Federal agents show up unannounced, typically scaring the bejesus out of "subjects" and "targets." They ask questions they already know the answers to apprently in the hope of provoking responses they can later discredit and characterize as a lies.

The apparent goal is to sandbag lying-to-bureaucrats charges (punishable by up to 5 years) which they can use to leverage a plea agreements if their main criminal investigations fall flat.

And here's the clincher. The FBI and some other agencies have a policy of not recording interviews with suspects. They write up reports of the interviews when they get back to the office. So it's their recollections of what was said and their word against the word of defendants they typically portray in post-arrest news releases as low-life, scumbag enemies of the state.

Justice is served. Pretty cool, huh?

Posted by: John K | Nov 6, 2009 6:47:09 PM

The other thing is the breathtaking disparity between the plausible threats of punishment and the actual punishments meted out.

The Kerik deal is typical. "If convicted, the defendant faces up to 30 years in prison." Thirty years!

Then there's the plea agreement, and the sentence is 33 months.

It strikes me as indisuptably lopsided and unfair that prosecutors have that much leverage (30 years vs. 33 months in Kerik's case) to discourage citizens from exercising their trial rights.

Let's see, plead guilty and do 33 months or go to trial and risk rotting in prison. It's a tough choice for the innocent as well as the guilty. And it helps explain why about 96 of every 100 federal targets take the deal.

Kerik's case is typical, too, in that he's not going to prison for corruption, which supposedly was what it was all about. He's going in for lying to bureaucrats and for not paying taxes on the services that constituted the bribe.

They Al Caponed him. They Martha Stewarted him.

The system's designed to produce convictions, not test the truth of accusations made against citizens, which would be OK but for all the chest-beating about how inspiring and wonderful it is. It's not.

Posted by: John K | Nov 6, 2009 9:53:07 PM

John K, you and Soronel both have it nailed. Folks it ain't no secret that a federal prosecutor will lie through his teeth and attempt to intimidate anyone with the threat of the "full weight" of the US Government to get a conviction. And it does not have to be anything all that serious (I'm saying serious for lack of a better word, all criminal activity is serious business)A defendant looking at 12 months probation often gets the same full court press as a mass murderer. But hey, the prosecutors just told SCOTUS that there is nothing in the Constitution that says that you can't be framed and god help us,they believe it. As you said so well John,"The system's designed to produce convictions."

Posted by: HadEnough | Nov 7, 2009 10:07:22 PM

But is the prosecutor to blame for that? He's just doing his job. If you don't like the way he is using the tool, take the tool away. The legislature can change the law so the prosecutor doesn't have that ability.

I honestly don't think the system is set up to produce convictions. I think it's set up to be efficient. Producing convictions is a side effect from the fact that we have lost sight of justice as a search for the truth and have only become interested in administration. It's what happens when you switch the talisman of legitimacy from outcome to process.

Posted by: Daniel | Nov 8, 2009 10:49:58 AM

Of course a person confronted with an agent at the door asking questions has more than one option. Such as:

1. I prefer not to talk to you.
2. I prefer not to talk to you without my lawyer.
3. Please make an appointment and I'll be happy to talk to you.
4. I'll talk to you but I want the whole thing on videotape.
5. I'll answer written questions only, after I've had time to digest them.

Etcetera. And then there's this novel option: The person questioned could just tell the truth!

Posted by: Bill Otis | Nov 8, 2009 12:05:37 PM

John K --

"They Al Caponed him."

You are the first person I ever heard of who objected to the prosecution and imprisonment of Al Capone, no less. But given your unworldly, acid bias against prosecutors, I guess I shouldn't be surprised.

Posted by: Bill Otis | Nov 8, 2009 12:12:04 PM

Bill --

Al Capone belonged in prison. It's just that I'd have been more impressed if he'd been convicted for any of the crimes that made him public enemy no. 1 instead of cheating on taxes.

Unworldly acid bias against prosecutors? Not really. I just believe people with that much power should use it with greater restraint and circumspection than what I've seen.

Of course I know the smart play is to bow, courtesy and ultra-politely decline to take the bait without having a lawyer present. Problem is, lots of citizens (apparently including smart, well-connected people like Martha Stewart, Bernie Kerik, Scooter Libby, etc.) don't know that...or are too shaken by the G-men's dynamic entry approach to think straight.

Daniel --

Did we learn nothing from Cool Hand Luke? "Callin' it your job don't make it right."

Beyond that, in my lifetime I don't expect to see any legislature anywhere take anything away from any law enforcement agency. To do so would risk waking up the demagogues and jeopardizing political careers.

Posted by: John K | Nov 8, 2009 3:50:03 PM

John --

1. "Al Capone belonged in prison. It's just that I'd have been more impressed if he'd been convicted for any of the crimes that made him public enemy no. 1 instead of cheating on taxes."

Except that he DID cheat on his taxes, so why should he have been exempt from getting prosecuted for it?

The problem with trying him for racketeering, extortion and murder, among his various other activities, was that the prosecution's witnesses and potential witnesses kept being found in concrete boots in the Hudson River.

2. You say this: "Unworldly acid bias against prosecutors? Not really." followed exactly one sentence later by this: "Of course I know the smart play is to bow, courtesy and ultra-politely decline to take the bait without having a lawyer present."

Sure, no bias there!!!!! Righto.

No one is demanding bowing or ultra-politeness; that is just flat-out made up. Nor, for that matter, did I recommend any such thing. I gave five alternatives for dealing with police questions, the first of which was, in toto, "I prefer not to talk to you."

Finally, you never did say what you think is wrong with just telling the truth. Of course if you've got a body hidden in the attic, a la' Mr. Sowell, I can see why you might want to avoid the truth, but if you're a normal person -- who, for example, teaches his kids to tell the truth -- why not practice what you preach?

Posted by: Bill Otis | Nov 8, 2009 8:49:31 PM

Bill writes: "...you never did say what you think is wrong with just telling the truth."

I'm tempted to ask if government agents should be held to that same high standard, but we both know that's not going to happen.

In the last federal trial I covered, two of four FBI agents who testified were caught on the stand in small but significant fibs calculated to make the defendants look more culpable.

A third agent was caught telling a whopper. None of the three was even frowned at for what might easily have been seen as perjury but for their lofty positions in law enforcement.

And, as some of us know, lying is SOP for government agents interrogating citizens. But there are plenty of other reasons candor in a visit with the feds might be a bad move.

Since ignorance of the law is no defense in this gotcha era of over-criminalization and draconian sentencing, the Fifth Amendment is all citizens have until their lawyers show up.

Literally thousands of criminal statutes have been added in recent decades, creating a vast minefield awaiting any truth-telling citizen foolish enough to wander into it.

Any number of seemingly innocuous activities expose citizens to ruthless, relentless scrutiny by cleaver, imaginative, ambitious folks with pockets full of vague, sweeping statutes most of us know nothing about...any one of which could send any of us away for decades.

Finally, when cops/agents/prosecutors tell you anything you say can and will be used against you, they really really mean it. Absolutely anything you say can be your undoing, regardless of where it falls on the truth-fiction continuum.

Posted by: John K | Nov 9, 2009 3:06:27 PM

John K --

So lying is preferrable???

Not in my world.

When a parent instructs his teenager to tell the truth, that admonition is generally unaccompanied by such qualifiers as "...unless you're going to get in trouble, in which case it's OK to lie like crazy," or "...there are a whole bunch of rules out there that are just so much 'gotcha,' so feel free to protect yourself from the swamp by being dishonest."

There is much said on this site about the evils of hypocrisy. To me, it is the height of hypocrisy to tell your kid one thing while reserving to yourself the "right" to do the opposite. (Also, when your kid finds out you're doing this, you will quite properly lose all credibility with him, and you will lose precious standing in his eyes).

Although as a moral and cultural matter I believe being truthful and forthcoming is the thing to do, I understand that, as a legal matter, that is not necessarily the stance our country has adopted. But, as I pointed out earlier, even if you don't want to be forthcoming, you don't have to lie. Indeed there are any number of available alternatives to doing so -- I rattled off five of them.

As the Supreme Court said about 50 years ago, in US v. Bryan (sorry, I don't have the citation in my head), "There are many ways a person may react to questions the government ought not to be asking. Lying is not one of them." (That is a close paraphrase, not an exact quote).

For my money, the Court had it spot on.

Posted by: Bill Otis | Nov 9, 2009 6:56:20 PM

C'mon, Bill. The disapproving gaze of your parents or the withdrawal of the car keys on a Friday night is an entirely different matter than five years in a federal prison.

I'm not saying lying is good. I'm saying lying, not under oath, to a government bureaucrat is one of the many traps the government sets in lieu of building solid (honest?) cases.

BTW: I noticed you didn't address the practice in which government agents routinely lie to suspects...and how it fits into the view that being truthful and forthcoming is always the thing to do.

Posted by: John K | Nov 10, 2009 8:36:58 AM

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