ZadekpediaThree Felonies a Day: How the Feds Target the Innocent is a book by attorney Harvey Silverglate arguing that federal criminal law has grown so expansive and so vaguely defined that the average American commits roughly three federal felonies a day without knowing it. Silverglate discussed the book across multiple episodes of The Bob Zadek Show, where its thesis served as a common thread linking campus speech codes, inner-city policing, and the case for abolishing the FBI.
The thesis
Silverglate summarized the book’s premise on the show: the average American, going about daily life, is probably committing three felonies a day whether he knows it or not. The mechanism, he explained, is that federal fraud is essentially undefined. The statute reaches any fraud committed through the use of the mails, which gives the feds jurisdiction, or in interstate commerce—so that a crime committed while traveling from New Jersey to New York becomes federalized—or through telephones or the mails. The crimes themselves are ill-defined; as long as the means are used, a federal crime exists, and what counts as criminal is whatever the federal government decides should be criminal that week. Silverglate invoked the saying that a grand jury can indict a ham sandwich, adding that it can do so as long as the ham sandwich gets on the telephone. He grounded the objection in a principle of English common law: nobody should be prosecuted unless he knew what he was doing, intended to commit the crime, and the crime is readily defined—a protection he said has been lost in the federal system The FBI: Our Uninvited Federal Police Force (2022).
From campus to the criminal code
Silverglate’s earlier appearance on the show concerned free speech on college campuses and his work with FIRE, the Foundation for Individual Rights in Education, which he co-founded with Alan Charles Kors after the two wrote The Shadow University: The Betrayal of Liberty on America’s Campuses. Bob Zadek introduced Silverglate as an attorney in Cambridge, Massachusetts, a litigator, a columnist for the Boston Phoenix and the National Law Journal, and a former teacher at Harvard Law School, noting that Silverglate had appeared once before on the occasion of Three Felonies a Day Is Your Alma Mater a Soviet Gulag? (2011). Silverglate described FIRE’s mission as taking on the totalitarian mentality among administrators and some professors—mostly administrators—on American campuses, and said the organization was founded after hundreds of students and their parents responded to the book with accounts of being punished for saying things that were politically incorrect.
Zero tolerance and policing
On a later episode, Zadek connected the book’s thesis to what he called the concept he abhors of zero tolerance, citing students suspended for pointing fingers in the shape of a gun or for eating a Pop-Tart into approximately the shape of a gun. He observed that the rules are aggressively enforced in the inner cities and less aggressively enforced in Princeton, and asked whether that is the kind of country we want to live in Alice Goffman on Fugitive Life in an American City (2014). His guest, sociologist Alice Goffman, agreed and called for reform of sentencing and reform of policing. She described police in the neighborhood she studied as an occupying force—anonymous SWAT teams and task forces that swooped in with the sole goal of arresting as many men as possible—and argued that the combination of aggressive arrest-based policing, mandatory minimums, and three strikes had created perverse incentives, massive incarceration, and violation of personal liberty. Asked how the country arrived there, Goffman pointed to rising crime in the 1960s and 1970s, riots, and civil unrest, and said the solution chosen across the aisle was to crack down and incarcerate en masse, alongside a less well-known system of probation, parole, and warrants; she noted that job creation or treating drug addiction as a health issue were among the paths not taken.
The FBI and the federal code
Silverglate returned to the show to argue for abolishing the FBI, and Zadek framed the hour around the expansion of the federal criminal code and the agency’s culture of blackmail and inaccurate reporting. Zadek said he had grown up entertained by radio drama including G-Men and by television’s The FBI, starring Efrem Zimbalist Jr., and that based on the Bureau’s behavior during most of his adult life he had been brainwashed—citing its treatment of Martin Luther King, Aretha Franklin, hippies in general, the Steele Dossier, Hillary Clinton’s laptop, and Hunter Biden’s laptop The FBI: Our Uninvited Federal Police Force (2022). Silverglate argued that the Constitution does not give the federal government plenary power to enforce criminal laws and is specific about which federal crimes there should be, piracy and counterfeiting among them, but that over decades and centuries the federal government, with the aid of the Supreme Court, enacted an enormous number of criminal statutes.
Silverglate attributed the Bureau’s grip on Congress to the code itself: because every congressman leads a busy life full of financial transactions, each is somehow susceptible to being charged with a federal felony, giving the Bureau a device for subtle blackmail over the people supposedly in charge of the country. He described a vicious symbiosis between the federal criminal code and the Bureau. Asked whether anyone in power privately supported abolition, he said quite a few federal prosecutors had confided that they were shocked by the dishonesty of FBI agents but would not say so publicly, that a couple of federal judges had told him they agreed, and that quite a few law professors did as well—though he did not expect abolition in his lifetime or Zadek’s. He also traced federal overreach to the Civil War, arguing that slavery was responsible for the destruction of federalism in this country because the notion of states’ rights had been blackened by its association with the Southern states that kept slaves.
Across episodes: the thesis in three settings
The episodes show the same thesis applied in three settings rather than developed or revised. In 2011 Silverglate discussed Three Felonies a Day in the context of campus speech and FIRE; in 2014 Zadek invoked the book himself while questioning Alice Goffman about zero tolerance and inner-city policing, and Goffman agreed with the diagnosis while pressing for sentencing and policing reform; in 2022 Silverglate returned to argue that the same code makes the FBI’s blackmail of Congress possible. The later treatment adds the institutional argument—the Bureau and the code as a symbiosis—but the underlying claim about undefined federal crimes and ordinary means of jurisdiction is unchanged.