Senate Majority Leader Harry Reid has never been mistaken for an honorable man; therefore his tactic of using an unnamed source to accuse Mitt Romney of not paying taxes and then declaring that it is Romney’s job to prove him wrong is of no surprise at all. I agree with George Will’s assessment that Reid’s accusations reek of McCarthyism.
I have compared the Enron witch hunts to McCarthyism in other posts. Every defendant and every attorney I have talked with has acknowledged that each Enron defendant went to trial knowing that they were presumed guilty by the jurors and that they must prove their innocence at trial. And a non-skeptical press and a hysterical citizenry felt the same way — Enron executives were all guilty by decree. Just re-read the old dribble of Houston Chronicle columnist Loren Steffy about Enron if you want to see mindless bias in print.
However, in addition to the presumed guilty aspect of the Enron prosecutions, the description by George Will (and Charles Krauthammer also) of Joseph McCarthy’s infamous speech on February 9, 1950 made me think of another eerie analogy with the Enron prosecutions. In that frightening speech, witch hunter McCarthy claimed to have a list of secret Communists, but he refused to publicly and openly tell what names were on his list:
“I have here in my hand a list of 205 . . . a list of names that were made known to the Secretary of State as being members of the Communist Party and who nevertheless are still working and shaping policy in the State Department. . . .”
What struck me is the fact that the number 205 is about the same number as that on the total list of un-indicted co-conspirators named by the Enron Task Force (ETF) across the multiple Enron-related trials. What a spooky coincidence!
An un-indicted co-conspirator is a person who the prosecutors are accusing, by fiat and without requirement of proof, of being part of a criminal conspiracy, but who the prosecutors are saying they are “choosing” not to indict. In the Enron Broadband case alone, there were more than three un-indicted co-conspirators for every person indicted by the Feds. Federal prosecutors are fond of designating people as un-indicted co-conspirators for a number of reasons:
1. It requires no presentation of evidence by the prosecutors — judges routinely accept this designation without question.
2. The people accused of being un-indicted co-conspirators do not get to defend themselves against the designation — often, an un-indicted co-conspirator is even unaware that he has been so designated because the prosecutors get to keep the list of names hidden from the public.
3. At trial, the prosecutors are allowed to present into evidence statements from un-indicted co-conspirators
without calling the people to the stand where they could defend themselves and where they could be cross-examined by defense attorneys.
4. The prosecutors like to “remind” potential witnesses of their un-indicted co-conspirator status as an intimidation tactic — to coerce them into “cooperating” with the prosecution or to intimidate them into not testifying for the defense. The ETF used this tactic with much success in the various Enron prosecutions.
Basically, the prosecutor’s ability to name a person as an un-indicted co-conspirator without proof is like the right to slander a person without recourse by the wronged party. It also reveals one of the many systemic advantages that the prosecution has over the defense in our criminal justice system — there is no off-setting ability that the defendant has which gives him similar capabilities.
McCarthyism, it seems, is alive and well at the Department of Justice and has become an accepted practice by federal prosecutors.