I've never understood why some criminal defense lawyers feel the need to make a great public display about how they only represent those whom they believe are truly innocent. There's a self-indulgent, almost moralistic quality to such declarations that render the lawyers untrustworthy. And hence my problem with Sidney Powell's otherwise excellent book, Licensed to Lie: Exposing Corruption in the Department of Justice (Brown. 2014). She takes pains to tell us she never sides with sinners.
Powell is a former Justice Department lawyer who has, for the past 20 years, devoted her private practice to federal appellate work. Although she has handled upwards of 500 appeals, little of this work, she says, has been on behalf of criminal defendants. Her representation of Jim Brown, a senior Merrill Lynch investment banker convicted of white-collar offenses related to Enron's implosion, represents a watershed moment late in Powell's career.
Powell's client was convicted for his role in a transaction involving barges serving as energy plants in Africa. Enron strong-armed Merrill Lynch into financing part of the transaction. The bank went along, but only because it felt it had to in order to secure the long-term relationship with Enron. The government contended that there was a secret deal between the bank and Enron in which Enron guaranteed to buy the barge back after a brief period, thus rendering the initial investment of Merrill's risk-free, and making fraudulent any reporting of the transaction as a bona fide venture. Parsing these distinctions is the sort of high-stakes tedium that makes the white-collar criminal defense bar wealthy.
The same high-flying group of prosecutors in Washington who prosecuted Brown had also prosecuted former Alaska Sen. Ted Stevens for failure to properly report gifts, the Arthur Andersen accounting firm and Enron's Jeff Skilling. Most of them went on to stellar careers in private practice, academia or in the Justice Department itself. I say most, because one, Nicholas Marsh, killed himself amid an investigation of whether the Justice Department willfully withheld exculpatory evidence in the Stevens trial.
The investigation of the prosecutors in the Stevens case was ordered by U.S. District Judge Emmet Sullivan because he found a shocking failure on the part of prosecutors to turn over material to Stevens' defense team. The charges against Stevens were dismissed, and a special prosecutor appointed. Judge Sullivan defined, if only for a moment, what a truly independent judiciary looked like.
Powell discovered the same pattern of withholding evidence in the prosecutors handling her client's case. She chronicles her efforts in the district court, the Fifth Circuit and the U.S. Supreme Court to overturn her client's conviction. She names names in this book, calling out for special scorn U.S. District Judge Ewing Werlein, Jr., in the Southern District of Texas. Her contempt for Werlein is obvious: she portrays him as a jurist incapable of standing up to the government when the government errs.
In a table at the end of the book, Powell illustrates the exculpatory material the government failed to provide her client's counsel at trial by means of a chart. In one column are the contents of how prosecutors described exculpatory material in a summary letter they provided to the defense before trial. An adjacent column reflects what was actually in the documents. The prosecutors clearly hid the truth from the defense. Jim Brown deserves a new trial.
I read the book with a brooding sense of wonder: All those trips around the country; the thousands of hours studying documents. Not once did she ever mention fretting about a fee. It must be nice, I thought, to have clients with seemingly infinitely deep pockets. The rich really do live differently.
Near the end of this 400-page book, Powell wonders whether she can remain in the practice of law. She's lost confidence in the courts, in the integrity of the Justice Department, and even the rule of law. One wonders how she practiced law for 30 years and remained untouched by cynicism: ours is a profession of high aspirations constantly shattered by the gritty reality of the cases – we come to call them "fact patterns" – that consume us. She may well leave the law for a career as a legal fiction writer: She experiments with breezy transitions and takes liberties with facts in this otherwise well-written book -- she relies too much on cliches to characterize what people must have been feeling at various hearings she did not attend, an unncessary device.
Sidney Powell's career as a lawyer is, apparently, about to begin. She now knows that the government lies. Let's see if she is radicalized by this insight or if she becomes so disillusioned she leaves the trenches for the safer confines of commentary. Whether factually guilty or not, defendants stand daily in the well of courts nationwide looking for lawyers with the courage to fight. Powell ought not to give up now that she realizes just how desperate those fights can be.