The FBI: Our Uninvited Federal Police Force
2022-11-30 · Guest: Harvey Silverglate (Civil liberties attorney and FIRE founder) · 55:33
Abolishing the FBI and federal criminal code reform
Bob Zadek and Harvey Silverglate discuss the inherent corruption and unconstitutional nature of the FBI, arguing for its total abolition. They explore how the expansion of the federal criminal code and the agency’s culture of blackmail and inaccurate reporting (Form 302) have undermined civil liberties and the principle of federalism.
Topics: FBI, Federal Criminal Code, Civil Liberties, Federalism, J. Edgar Hoover, Form 302, 18 U.S.C. Section 1001, Three Felonies a Day
Speakers: Bob Zadek, Harvey Silverglate
Introduction: The Myth of the FBI [00:00]
Bob Zadek: Hello everyone, I’m Bob Zadek, host of the country’s longest-running libertarian broadcast, nationally streamed at 8:00 AM Pacific Time Sundays on the 860 AM app. My podcast contains more than a decade of historical issues. BobZadek.com offers resource material, book lists, other topical broadcasts, and more. We strive to offer in-depth content on social, political, and economic issues that really matter, and always with the ideal guest. Accessible and entertaining, our rule: ideas, not attitude.
I’m the last generation to have grown up being entertained by radio drama, including as I recall, G-Men, where in 30 minutes per episode, an FBI agent eliminated yet another bad guy from harming us. Early television brought us The FBI, starring Efrem Zimbalist Jr., which ran from about 1965 through around 1974. I entered adulthood thanking heaven that the FBI had our backs. Based on the behavior of the FBI during most of my adult life, I found that I have been brainwashed, as demonstrated by the FBI’s treatment of Martin Luther King, Aretha Franklin, hippies in general, the Steele Dossier, Hillary Clinton’s laptop, Hunter Biden’s laptop—need I go on?
Today’s guest, Harvey Silverglate, has a perfect solution: abolish the FBI. Harvey, welcome to the show.
Harvey Silverglate: Good to be here.
Bob Zadek: Okay, Harvey, you have made a career out of preserving others’ civil liberties. You have done a thankless and effective job through your entire career as I understand it. Among your successes, your triumphs, you have given me a nonprofit organization to which I happily give every penny that I can muster, which is FIRE—the Foundation for Individual Rights in Education (because that was its old name, but it’s since broadened its constituency) as it protects free speech on campus and it protected those who were denied due process in campuses. You also have litigated against the government in general, the FBI in particular. So you have had a lifetime of experience. So you will give us today the benefit not only of your general knowledge of how stuff works, but also your firsthand sensory perceptions—what you have experienced in protecting those who most need protection against the abuses of government.
The Culture of Corruption [04:50]
Bob Zadek: So Harvey, abolish the FBI. As I said in my intro, they always wore suits and ties, they rarely used their guns, they always dressed impeccably, they were polite, they didn’t smoke, drink, womanize—at least that’s what the media taught us. They were, I guess, personified most recently by Kevin Costner’s portrayal of Eliot Ness in that, I think, great movie, The Untouchables. He was as pure as new-fallen snow. But yet you don’t quite agree with the media presentation of the FBI, and no doubt the FBI had a hand in the scripts of those shows, but I don’t know that for sure. So first, tell us, Harvey, as an introductory paragraph if you will, why are you now in your writings, and have been for some time, hoping for, encouraging the FBI be abolished? Tell us the headline of what’s wrong with the FBI, and then we’re going to drill very deeply into the specifics.
Harvey Silverglate: Culture is everything. The FBI has had a culture that started with its first director, J. Edgar Hoover. And that culture—Hoover spent his life as the director of the FBI. It went on for decades. And that culture cannot be changed, cannot be reformed. It doesn’t matter who the president is, it doesn’t matter whom the president appoints as director of the FBI, it doesn’t matter who the Attorney General is. The FBI has an ingrained culture that cannot be changed. My recommendation is that it be abolished, and if a federal police agency is needed—and that’s questionable—then there should be a new organization with a new name, new agents, and a new director. And there should be strict regulations governing the obligation of that new agency to honor the civil liberties of the people that it supposedly is serving and protecting.
The “Police” vs. “Investigation” Distinction [06:30]
Bob Zadek: Now you said, Harvey, you said about a semester’s worth of content just then. One of the words that I picked up on, you said “if we need a federal police force.” You used the word “police.” And you said “if we need one.” That invites, I think, what the audience will find to be a quite interesting analysis into what the FBI actually is. We as a country pride ourselves on never having had a federal police force, the very words you used. The name of the FBI doesn’t have “police” in it: Federal Bureau of Investigation. One might think their job is fact-gatherers. They gather information so other parts of the federal government can use that to enforce and to create and to eliminate federal law. So did you use the word “police” as suggesting what the FBI is on an informed basis because you really know what they do, or was it just a word that may not have been intended?
Harvey Silverglate: I chose the term very carefully and intentionally. They are police. They don’t have uniforms, they wear suits, but they are policemen enforcing a federal criminal code that never should have been allowed to grow to what it is now.
The Expansion of the Federal Criminal Code [08:30]
Harvey Silverglate: And let me tell you why the federal criminal code is so dangerous. The Constitution does not give the federal government plenary power to enforce criminal laws. The Constitution is very specific as to what federal criminal laws there should be: piracy is one of them, counterfeiting for example. There’s a particular federal interest in making sure people don’t print their own dollar bills. However, what’s happened is over the decades, over the centuries, the federal government with the aid of the Supreme Court has enacted an enormous number, an enormous number of criminal statutes.
And then here’s how it works. Federal fraud, for example, is essentially undefined. What the statute says is any fraud that is committed through the use of the mails, the U.S. mails (which gives the feds jurisdiction), or in interstate commerce (which gives the feds jurisdiction from one state to the other—if you commit a crime and you travel from New Jersey to New York, you’ve now federalized whatever it is that you’ve done), or the use of the telephones or the mails or anything like that. In other words, the means. The crimes are ill-defined. As long as you operate with the use of the mails or in interstate commerce, you have committed a federal crime. How do you define them? Whatever it is that the federal government decides should be criminal this week. And that is the danger.
There’s a fundamental principle of English common law that nobody should be prosecuted for something unless they knew what they were doing, intended to commit the crime, and the crime is readily defined. And that is what has been lost in the federal system. So we are all vulnerable. And that’s the fundamental basis of my book, Three Felonies a Day: How the Feds Target the Innocent. It’s not substantively what you do, it’s simply your use of the mails or the telephone or the means of interstate communications or commerce. And virtually they can indict—you know the saying they can indict a ham sandwich? They can indict a ham sandwich as long as the ham sandwich gets on the telephone.
Federalism and State Sovereignty [11:45]
Bob Zadek: Now here’s a question, Harvey. You mentioned fraud. Wonderful place to start. All these crimes that if you use instruments of interstate commerce, you now come within federal criminal law jurisdiction. The question—help us understand. We start with fraud, you picked it, that’s fine. And fraud is a crime, I predict, in every single state. So somebody who defrauds another, or take any other crime—robbing somebody—somebody who does that act has committed a crime in a jurisdiction which has a police force, which has a court system, which has a jail, and which has a prison, which can deal with it. So if anything is felt to be criminal, the states know how to make it criminal. So can you give us, if you’re able to, an historical perspective on why anybody perceived the need to create a federal crime when it already was a state crime, and doesn’t that violate federalism?
Harvey Silverglate: Okay, first of all, the thing about state criminal statutes—with the exception of Louisiana, the states all operate under the English common law system. What do I mean by that? I mean that the definition of these crimes—larceny, assault and battery, anything of that nature—has been defined by hundreds and hundreds of years of judicial decisions, legal precedents. We have a very good idea. If you go into a supermarket and you steal a bag of potato chips, that’s larceny. And if you steal enough bags of potato chips, it’s grand larceny. Everybody understands what stealing is. Everybody understands what assault and battery is.
Who understands what mail fraud is? It’s a vague, vague notion of a fraud committed by the use of the mails. Almost everything we do—this interview is—the feds have control of what we do, what we say, because we are using the means of interstate communication to conduct this interview. And if one of us says something that can arguably violate a federal statute, suddenly we’ve got an FBI agent knocking on the door to do an interview. And the interview process is another whole…
Bob Zadek: We’ll get to that.
Harvey Silverglate: Yes.
Bob Zadek: Okay, so but when we start with a system where bad behavior is covered adequately, at least in the opinion of each state looking at them one at a time—California says, “We are satisfied that using marijuana should not be a crime, and in our state it should not be a crime.” And Nevada may reach a different conclusion. That’s federalism in action. That’s the way it’s supposed to be. So what was the process, going back a long time, when somebody in Washington felt a need to criminalize behavior which the states had already decided either was or was not criminal? What caused the beginnings of and then the growth of a federal system of criminalizing interpersonal behavior where a state felt otherwise? How did we get down this horrible road we’ve gone so far on?
Harvey Silverglate: Well, the problem is that the U.S. Supreme Court, which could have stopped all this, has enabled it. And it has bought into the notion that as long as you use the means of interstate commerce or interstate communication, what otherwise would be classic common law crime covered by the states now becomes the federal crime. And there was this whole era—remember we had the New Deal, for example? The Depression enlarged the scope of federal jurisdiction in American life something fierce. Now, that was—we had a national emergency, the Depression was very serious, and all of these programs that the Roosevelt administration started are credited with really saving the country in a way because there was some real revolutionary activity going on at that time. The problem is that the Supreme Court allowed this theory about increased federal jurisdiction to operate in the criminal justice system, which turned out to be, and has turned out to be, a tremendous threat to American liberty.
The common law notion of crime and punishment is that a person can be prosecuted and punished for knowingly violating a clear obligation, clear obligation. Now we have a situation where you can get 10, 15, 20 years in federal prison for doing something that some prosecutor can convince some judge is a crime, is a fraud for example, as long as you use the telephone or the means of interstate communication or the mails. So these are ill-defined, undefined, deracinated from common law definitions of what crimes should be. The common law is what ordinary people understand a crime should be: you don’t punch someone in the nose, you don’t steal what’s not yours. But it takes lawyers—lawyers don’t understand. There are things—I have cases in which a client is charged with something federal, and I think to myself, “What the hell? Why is this a crime?” Well, it’s a crime because some Assistant U.S. Attorney and some FBI agent think they can convince a judge it’s a crime. And mail fraud, again—what the hell is fraud? A lot of this is in the eye of the beholder. It’s very dangerous to liberty to have the government be able to pick people off who might be, for example, critics. I mean, I have had investigations done of me because I’m a kind of loudmouth, high-profile civil liberties and criminal defense lawyer, and they’d love to get me. And that’s not a good formula for a free society.
J. Edgar Hoover’s Legacy [19:35]
Bob Zadek: Now, so we have a system of federal law, we have a Federal Bureau of Investigation, a de facto, as you have explained, police force, but that’s not how they present themselves. So how did the FBI—and you said in the beginning of our show, it’s a culture that can’t be fixed. So tell us first what that culture is, and as you explain it, was it always that way from inception, and was that because of the leadership, or is there something wrong with the very fact of it that makes it not curable?
Harvey Silverglate: I attribute it to J. Edgar Hoover. And remember, Hoover got to the point where he was able to blackmail presidents of the United States. He, of course, infamously tried to blackmail Martin Luther King Jr. They—remember they planted a bug in a room where King was having an affair with a woman and threatened that they were going to tell King’s wife unless he calmed down in his civil rights work. He blackmailed John F. Kennedy because of Kennedy’s affairs. This was an FBI director who was able to blackmail the President of the United States. No wonder nobody ever fired him. He had dossiers on congressmen. So we allowed this monster to get an enormous amount of power, and he was able to do it in part because he could pin a crime on just about anybody, including members of Congress and occupants of the White House. And so this was a huge mistake to allow this director of the FBI to get to the position where he was in. But you know, the problem was he had something on virtually everybody. Why? Because virtually anything that anybody did could be teased into a federal—the definition of a federal crime.
The Reform Problem [21:12]
Bob Zadek: Now, if—given the fact that J. Edgar Hoover was able to accumulate so much power using not a gun, but using information—information infinitely more powerful than a weapon, as J. Edgar Hoover has shown—so one would think that an incoming president, incoming Congress, anybody in Washington who feels that they could be the subject of that power, the focus of that power against them, why wouldn’t they seek to have an FBI head who was clean, who was not a threat, who was more bureaucratic, who was not ambitious to accumulate power through information? Why was—because I presume from what you have said that successive heads of the FBI after J. Edgar Hoover were the same. Well, how were they able to be that way if the people who hire them are fearful of the power they could accumulate?
Harvey Silverglate: Well, first of all, I don’t think any FBI director since Hoover was nearly as bad as Hoover. But the problem is you could have the Archangel Gabriel as the director of the FBI and it wouldn’t change things at all because there is an ingrained culture that operates in the FBI that is beyond the control of the director. The director is really now sort of like a bureaucrat. The agency operates pretty much on its own. And that’s the problem. If I thought that hiring a good director—you can find good directors—if I thought that that would do the trick, I would say, “Well, the solution is to have a good director.” But culture is beyond the ability of any director to change. And that’s why I think abolishing the agency and starting over—new name, new agents, new director, whole different ball of wax—is the only solution.
The Form 302 and the Lying Trap [24:19]
Bob Zadek: Now, give us the bullet points of the elements of that culture that you are referring to, and support that explanation if you would, if you can, with examples, because I dare say there are many that are available to the public and certainly you are aware of a great deal of them.
Harvey Silverglate: Okay, let me tell you what happens when the FBI knocks on the door of a client of mine. I have told all my clients, if they show up, give them my name and phone number and don’t say anything else. So the agents contact me: “We would like to interview your client.” I said, “Sure. Come up to my office tomorrow at 3:00.” He says, “No, we’d like to do it in our office.” I said, “Well, that’s too bad, then we’re not going to show up. Either you show up in my office or it’s not going to happen.” So they show up. Two agents show up. One of them takes notes, the other one asks the questions. The one who takes the notes then goes back to the office and types up a report of the interview called a Form 302—302 form. That report is the official record of the interview. I have never seen a Form 302 that accurately depicted what was actually asked and said. It depicted what the agents hoped my client had said in answer to their questions.
So I say to them, “Okay, I’m alright with this.” I pull out a tape recorder (now of course they’re all digital, there’s no tape, but you know what I’m talking about). I put it on the table. I press “on” and I say, “Alright, let’s go.” The agent says, “No, no, we’re not allowed to have a tape going.” I say, “Oh, really? No kidding. Well, my client is not going to be interviewed unless I am allowed to record it.” And the agents get up and leave. Bye-bye. Now, would you give me—can you possibly think of one good reason why an agency would have a rule that interviews are recorded only by an agent taking notes, and if you use electronic recording means, they get up and walk out? There is only one explanation, and that’s because they are not interested in an accurate record of the interview. They’re interested in having a record of what they wish your client had said. And in fact, if the 302 is the only evidence of the interview, that’s what your client has said. This is a totally, totally corrupt process.
Robert Mueller and the “Ambiance” of Interviews [27:01]
Harvey Silverglate: When Robert Mueller—there were hearings, Robert Mueller got—he was the U.S. Attorney in Boston, so I know Mueller very well and he knows me very well, and I would not say that we like each other too much. He is now retired. And when Mueller testified before a congressional committee, one of the questions brought up—I think it was by Representative Emanuel Celler of Brooklyn—question was why that we don’t have recording of FBI interviews. And Mueller said, “Well, it would interfere with the ambiance of the interview.” But get this: the ambiance of the interview. “We’ve done very well with the Form 302 process. We don’t need it.” And Congress just, you know, folded its tent. Now, why did they fold its tent? I think congressmen are afraid of the FBI. And that’s the problem. The FBI has material to blackmail an awful lot of them. And that’s the problem. The FBI is sacrosanct, it’s got its own power base, it is incapable of being controlled. And that’s the problem. Can you imagine Mueller, who’s an intelligent guy—a Princeton graduate, I believe—Mueller actually convinced—and I really don’t think he convinced, I think they were intimidated—the Congress that recording was not necessary, given the history of this corrupt agency?
The 18 U.S.C. § 1001 Trap [28:47]
Bob Zadek: Now, I think I know the answer to this, but I suspect many of our listeners do not. So let’s follow through on that story you told us about your client or another witness submits to an interview—not an examination under oath, and that’s really important, it’s not perjury—it’s an interview, it’s a chat with somebody who happens to be employed by the federal government. And the FBI agent, the one recording in the pad, records what he thinks he heard or what he wants to have heard. And now later in time, that 302 form finds its way into the public, it’s explained, maybe in the course of an examination later on, and the witness says, “I didn’t say that, and in fact, that’s wrong, that’s not what happened.” Now, tell our audience what follows from the witness saying to the institution of the FBI, “I didn’t say that” or “That’s not accurate,” because a lot of unpleasant consequences flow from that.
Harvey Silverglate: The unpleasant consequence is that the witness is indicted. Why indicted? Because it is a federal felony to lie to any employee of the federal government. By the way, not only FBI agents—if you lie to your postman, he’s a federal employee, that’s a federal felony. And what the feds then threaten you with is, “Okay, you’re now going to testify to something that we say you didn’t say, or you’re going to deny that you said something that we claim in our 302 form you did say.” So this is a violation of 18 United States Code Section 1001, making it a felony to give a false statement to an agent. So that means you lied during the interview and you’ve committed a felony. And you say you didn’t lie? Well, we have a Form 302 that says you did, and you don’t have a tape recording to prove otherwise. So it’s a perfect system for talking about putting words in a witness’s mouth. That’s exactly what they do. It is a pernicious, pernicious system.
Examples of Misconduct: MLK and Personal Stories [31:40]
Bob Zadek: Now, there are many examples that we have read about. I mentioned a few of them in passing in my introduction to this afternoon’s discussion. Clearly, you wouldn’t be writing so much and with so much information and passion about one bad practice: they don’t record interviews. The problems, as you have explained from firsthand experience, are much deeper and much more pernicious than merely that. So tell us, if you would, why you say the FBI to its core—because “abolish” is mighty strong language. So what are examples, if there are others, or reasons? Because if you’re trying to persuade the country that a revered by many institution, been around for a long time, for the most part most Americans would say, “We’re kind of happy we have an FBI, it protects us”—what are the other reasons why you say, or other examples, why it cannot be changed from the inside and it must be abolished? For example, if it was just the use of the 302, a statute says record all interviews. Done. Okay, Harvey, what else is on your mind? Are you happy now? But you would not be happy. So tell us more examples, make the case, if you will, for abolishment—a very drastic consequence.
Harvey Silverglate: Well, I want to point out first of all, it isn’t so simple to get enacted a statute for recording. We tried it, and the FBI managed to convince the Congress not to do it. Now, how did they manage to do that? Well, there are a lot of explanations for that. One of which is any congressman voting against the FBI is thought to be soft on crime, you know, not good on law and order. The second is, I think that the Congress is afraid of the FBI because they can pin a crime on virtually every congressman. That’s not saying congressmen are corrupt; it’s saying the federal criminal system has these vague, broad statutes that can indict a ham sandwich, and the ham sandwiches are afraid of the butcher. That is exactly one of the problems. So the FBI operates in—terrorizes basically the people who in theory are supposed to be controlling it. And it has its own institutional power that even has presidents nervous because, of course, presidents can be investigated because of the same ham sandwich problem. The presidency is an incredibly complicated job, and arguably a president commits three felonies a day. And it’s the FBI that decides which felonies to investigate. So it is an institutional problem here, and I do not believe that the FBI is capable of reform because it’s been going on since the first decade of the 20th century when the FBI was started, and it has been going on for a long time. So I’m not sure if I’ve quite answered your question, but you know, culture is everything.
Bob Zadek: Tell us a bit about some of the more recent examples, because there are many—I mentioned a few in my introduction—that our listeners can recall firsthand was going on, which are examples of which drive you to your conclusion.
Harvey Silverglate: Well, first of all, let me use not necessarily the most recent, but one of the most high-profile, and that was the blackmailing of Martin Luther King Jr. The FBI at the time—Hoover was the director and Hoover hated King—he had the FBI illegally bug a hotel room where King was having an assignation with a young lady, and then they—he let King know that he had this recording, and he was trying to derail the civil rights movement. Now, can you imagine that this happened in the United States of America? So there is an example that in my mind stands out.
Personal Encounters with FBI Tactics [37:11]
Harvey Silverglate: Now let me tell you a more personal example. I had a criminal case about 15 years ago in which I represented somebody who was high-profile—I can’t go into the details because of attorney-client privilege—but in Boston, it was a high-profile corruption case. And I learned years later that the following had happened. Two agents were stationed outside my office building. Their instructions were to follow me everywhere. One day, a guy comes out of my building—I think I was at 88 Broad Street at the time—a guy comes out of my building and the agents think that it’s me. Turns out it’s not me. This is lunchtime. He has an office in the building, he works in the building. He goes to a parked car underneath the then-elevated Southeast Expressway, gets into the car, and engages—he is given oral sex by a woman who is behind the steering wheel. The agents are thrilled, and they write this down, and I don’t know whether they took pictures or not. About three or four years later, a criminal defense lawyer friend of mine tells me that he was engaged in discovery in his case, and he came across this report that the agents had written in the file about Silverglate getting oral sex from this woman during the lunch break. In other words, they had this in case I gave them trouble, they could then blackmail me essentially. Can you believe that this happened? And this is in the United States of America. This was not in Russia, this was not in Turkey, this was not in one of these authoritarian countries—this is the United States of America. And it wasn’t even me, of course.
So that’s one story. Let me tell you another story. This is all personal now. I had at the time I was—my law partner was Nancy Gertner, who is later became a federal judge, she is now a professor at Harvard Law School. And we had a criminal case together—Silverglate and Gertner was the name of the firm—and we get a call from somebody who says, “I have firsthand—this was a marijuana importation case, by the way—I have information that can exonerate your client.” So we said, “Come on in.” So we lead this guy into our conference room. In the conference room is Gertner and Silverglate and the witness. The witness then says, “Actually, it’s not true that I have information that will exonerate him. However, I like your clients, I am prepared to testify falsely. And this is what I’m prepared to say.” Gertner and I stand up and say, “We’re sorry, but you know it’s a crime to suborn perjury, it’s a crime for you to perjure yourself, it’s a crime for us to cooperate in that process. Would you kindly leave?” He’s surprised, he gets up, he starts to walk out, and I notice there’s a lump over his suit jacket in his right shoulder. It was a Kelset—a small, back then it was they were not as miniature as they are now—he was recording the conversation so that if we had agreed to it, we would be indicted. I later complained to the U.S. Attorney about it—Mueller—and Mueller had the nerve to say to me, “Well, we had information that you might have, you know, wanted this witness to perjure himself, and we had an obligation to follow it through.” Can you imagine? Entrapment. Yes, this kind of entrapment. And you know, perfectly honest lawyers, we’ve never had a disciplinary charge against us. I’ve been doing this for 53 years and I have a clean record. And yet, they tried to do this to me. Well, you know, after a while, you can’t be cynical enough.
The Institutional Problem [42:12]
Bob Zadek: Now, when you—since you are one of the public figures, but by no means the only one, who support the thought of abolishing—abolishing, strong word—the FBI, have you detected in those people who matter, those people in power in government, do they communicate—has anybody of any power indicated support even if they couldn’t do so publicly? Is there a below-the-surface acknowledgment in Washington that this is something that needs to be fixed, or have you not found a groundswell—not in the public, I’m more interested in those people who are able to possibly make a difference?
Harvey Silverglate: Well, a lot of—I’m not sure about a lot of, but quite a few federal prosecutors have confided to me that they’re shocked by the dishonesty of the FBI agents. They cannot, however, say much in public or anything in public, at least they’re not willing to sacrifice their careers to do so. A couple of judges have told me that they agree with me—federal judges. Quite a few law professors. So there are people who really know the system who agree with me. But because of Congress, that this is not going to happen—at least not in my lifetime or your lifetime—and I attribute part of the grip that the Bureau has on the Congress to be because the Bureau has so much on so many congressmen. And remember, this is not a comment that is intended to say congressmen are corrupt, because remember my “three felonies a day” thesis: you can pin a crime on just about anybody—a federal crime on just about anybody. So the Bureau has this great device that it can use to subtly blackmail the people who are supposedly in charge of this country, that is the Congress, because every congressman—because they engage in their busy lives, they engage in a lot of financial transactions, they are busy, active people—is somehow susceptible to being charged with a federal felony. So there’s this symbiosis between the federal criminal code and the Bureau, and it is a vicious symbiosis.
Federalism and the Civil War [45:18]
Bob Zadek: On the big picture where we started our show, the very existence of an extensive system of federal criminal law where federal criminal law does nothing other than duplicate as being criminal the same behavior that is already been criminalized by the states. That is to say, there is no need—it does not appear to be any need for a federal crime if the same act is criminal under state law. If the purpose of criminal law is to deter bad behavior and to punish those who engage in bad behavior, those goals—the goals of criminal law—are satisfied by state law.
Harvey Silverglate: Correct. It’s worse. You understate the problem, and let me tell you how. Massachusetts has long ago decriminalized marijuana. The federal government continues to maintain that the use of marijuana is a felony, okay? In the Commonwealth of Massachusetts, the state legislature having decided that marijuana is not a crime—smoking it, selling it, or whatever—one can still get busted by the feds for doing something that the legislature of the sovereign Commonwealth of Massachusetts has decided is not a crime. So it is a terrible violation of the rights of people in this state that the feds override because of the federal law controls if there’s a clash between state and federal law. Why should the feds be able to do that? And the answer is because we have destroyed all notions of federalism and because we allow the federal government to criminalize the kinds of activities that the founders did not intend for it to have jurisdiction over.
Now, let’s remember that when our country was founded, the police power—and police power does not mean men and women in blue clothing with badges and guns—police power means in the broadest sense of the word, looking after the health, welfare, and safety of citizens. That was universally acknowledged within the country—not the universe—universally acknowledged within the country that that was the province of states. Why? Because criminal law reflects the public’s concept of right and wrong, and that’s a private decision. And people in different parts of the country could have a different opinion of right and wrong. And it’s very uncomfortable to have somebody, one citizen in another part of the country, export their view of right and wrong, their morality, to another citizen in another part of the country. And that kind of makes sense to me, that’s human nature. When you have federal criminal law—marijuana or drug regulation in the broadest sense is a perfect example—I have no problem with a state, and the state has the power, to conclude that our population or a majority opposes the use of narcotics. That’s okay. But it’s not somebody else’s opinion. A federal criminal law by its very nature is anti-freedom because it removes from citizens of one state the freedom to enact laws that they are comfortable with. And in a country as many people as we have, with as complex a civic life and as complex a way of living, exporting one worldview to another part of the country cannot work and just invites divisiveness.
Conclusion [50:18]
Bob Zadek: So Harvey’s presentation and his book, which was written two decades ago—it’s as relevant today, maybe more so because we have more federal criminal law than it was when it was written and it was a bestseller then. Harvey’s book is Three Felonies a Day, and the premise—Harvey, correct me if I’m wrong—is that the average American, whether they know it or not, going about their daily life, is probably committing three felonies a day. Is that a fair summary of the book?
Harvey Silverglate: That is a fair summary of the book. And I also want to point out something else: that this problem of federal overreaching is really a result of the Civil War. Slavery has had a terrible impact in this country in a lot of ways that still lives with us today. However, one of the things that was done is that the notion of states’ rights has been blackened, has been given a bad rep because one of the things the Southern states did was it kept slaves. And that, however, doesn’t mean that states should not have powers and rights that the federal government doesn’t interfere with. And that was really the—so slavery was really responsible for the destruction of federalism in this country.
Bob Zadek: That’s a wonderful way as we to point out the issue that the power of the states as opposed to over its people, as opposed to the power of the federal government, that worked fine but for slavery. There was no other issue where it was felt we needed a national law. No, we never felt a national law governing speed limits or driving age or use of alcohol or use of drugs. There never was and never will be a need for a national rule. It can be regulated at the local level, which promotes freedom.
Harvey, you have a very ambitious undertaking to persuade the country to abolish the FBI. But in doing so, you are performing an important public service because for sure, that organization is failing us in many, many ways, and it has tools for its own preservation that other federal agencies don’t have, as you have explained. And I think as we close, what I found myself thinking about is the CDC in its performance during COVID. The CDC was created to provide the public with information and research involving communicable diseases. Its last official act in COVID was a national eviction moratorium. Oh my goodness, oh my goodness. So agencies have a way, if they’re not examined, to—they decline, they expand their goal, they become inbred, and the very purpose might have been laudatory, but nobody can even remember why these agencies are formed, including the Federal Bureau of Investigation, aka our uninvited federal police force.
So Harvey, thank you so much for your time and for helping us pay attention when we read the headlines. And now we can look behind the headlines and ask ourselves, “What is this headline really teaching us?” And you have helped us understand that. So Harvey, thank you so much for your writings and for your blogging and for your work in the courtroom defending those people who probably need it more than most of the rest of us. So thank you so much, Harvey, for your time today.
Harvey Silverglate: Thank you for this opportunity to talk on these subjects.
Bob Zadek: We were speaking with Harvey Silverglate. Harvey is the author of Three Felonies a Day. He has written extensively in the media, as a blogger, as a letters to the editor. Follow his writings. Harvey, how can our audience follow what you have to say and what you are thinking about? Do you have a blog or active Twitter account?
Harvey Silverglate: I have HarveySilverglate.com is the best way to find what I’ve written.
Bob Zadek: Thank you so much to Harvey, and thank you so much to my friends out there for allowing me to have an hour of your attention on this day. And I hope you enjoy the rest of the weekend. Thank you so much.
Harvey Silverglate: Thank you.