Why Federal Prosecutors Should Fight Nonthreatening Criminals

In pursing online poker and celebrity liars, the government actually shores up the accuracy and reliability of our nation's justice system

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My Atlantic.com colleague Conor Friedersdorf -- who I'm just guessing is a solid online poker player -- lamented yesterday what he considers an inappropriate use of federal resources and priorities to pursue criminal investigations which don't ultimately make us feel "safer" even if they succeed. His lede:

Should the agency charged with stopping terrorists, human traffickers, and international street gangs spend time going after online poker sites? That's what the FBI has done. How many man hours did agents spend preparing the case? Surely federal law enforcement has better things to do

Or maybe not.

After all, they spent roughly ten years and more than $55 million trying to convict Barry Bonds and other professional athletes in the BALCO case. They largely failed in their highest profile efforts. But what if they'd succeeded?

Would that have been worth it?

The short answer is: yes. Of course. Despite the lingering economic downturn, the crime rate in America has been down the last three years -- all across the board. Congress has (for now, anyway) stripped the Justice Department of the power to meaningfully prosecute terror-law detainees in civilian courts where they belong. And federal prison overcrowding is a major concern. According to the Bureau of Prisons, there were approximately 212,000 inmates in federal custody last week, the result of decades of rampant "federalization" of our criminal law.

These facts do no excuse or explain bad prosecuting decisions by anyone at any level. But they do offer important context to Conor's points. By chance, his piece was posted on the same day that I received my copy of James B. Stewart's new book, "Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Madoff," the sub-title of which tells you all you need to know about how Stewart sees things. I'll leave it to the Pulitzer-Prize-winning author and reporter to carry my water and answer Friedersdorf's points about the feds unreasonably going after people like Barry Bonds and Lance Armstrong. From Stewart's book:

Mounting evidence suggest that the broad public commitment to telling the truth under oath has been breaking down, eroding over recent decades, a trend that has been accelerating in recent years. Because there are no statistics, it's impossible to know for certain how much lying afflicts the judicial process, and whether it's worse now than in previous decades. Some criminals have always lied when confronted by law enforcement. But prosecutors have told me repeatedly that a sure of concerted, deliberate lying by a different clase of criminal -- sophisticated, educated, affluent, and represented in many cases by the best lawyers -- threatens to swamp the legal system and undermine the prosecution of white-collar crime.

As costly as those cases can be, prosecutors pursue celebrity liars because high-profile investigations and the resulting trials are still a relatively cheap and effective way of reminding the masses of low-profile liars out there that they still can get in big trouble when they swear to "tell the truth, the whole truth, and nothing but the truth" and then don't. This doesn't make us "safer" in the sense that it shields us from a bullet or a scam. But it does make us "safer" in the sense that it seeks to shore up the accuracy and reliability of our nation's justice systems, both criminal and civil, which I suggest are the bulwark to all of the rest of government.

Friedersdorf's lament about the current demise of three major online poker sites is easier to address. Just because something is wildly popular doesn't necessarily mean it is victimless. And just because criminal conduct doesn't affect everyone doesn't mean it affects no one. There are plenty of victims of (allegedly) illegal online poker, starting with the desperately-short-of-cash federal and state governments which are deprived of all the taxable revenue ($3 billion, say the feds) from the now-suspected operations. And just ask casino and horse racing executives what they think of the way online poker operators have taken advantage of Congressional fecklessness on the topic. 

Here's how the Justice Department described last Friday's poker takedown: 

"As charged, these defendants concocted an elaborate criminal fraud scheme, alternately tricking some U.S. banks and effectively bribing others to assure the continued flow of billions inillegal gambling profits," said Manhattan U.S. Attorney Preet Bharara. "Moreover, as we allege, in their zeal to circumvent the gambling laws, the defendants also engaged in massive money laundering and bank fraud. Foreign firms that choose to operate in the United States are not free to flout the laws they don't like simply because they can't bear to be parted from their profits."

Flouting the laws they don't like. The government's present theme, which both Stewart and Friedersdorf have identified in their own way, is clear. Just because the law is a nuisance, or an inconvenience, or even a drain on your checkbook, doesn't mean you get to ignore it or, worse, willfully disobey it. I have no problem with the feds using some of their energy to try to turn around the trend Stewart has identified. But maybe that's just because I have never visited an online poker site.

Image credit: Reuters/Str New

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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