Over-Reaching Prosecutors Run The Country
For the last decade or so, the news has been full of the ascension of “former Enron Task Force prosecutors” to the highest halls of the White House, the Department of Justice, and the FBI. Why are these former prosecutors—whose actual record has been described by Business Insider as one of utter humiliation—being promoted by Presidents from both political parties?
Who are these people?
Let’s start with Christopher Wray—just named to head the FBI. The media has widely touted his impeccable credentials, which are impressive on their face, but we’d be remiss if we failed to waive a red flag of warning, given his role in overseeing the work of the Enron Task Force from 2003 until he left the Department in 2005. Thankfully, Wray himself did not make it into my book, but his Task Force Director Andrew Weissmann is a lead antagonist. Weissmann was just named to join former FBI Director Robert Mueller’s Russia “collusion” investigation.
Let’s examine the real record of the Enron Task Force—what you never saw in the news. Formed in early 2002, they made sweetheart deals with the actual criminals (Andrew Fastow & Michael Kopper) who stole millions and destroyed Enron; they coerced guilty pleas from people who were innocent but couldn’t continue to fight—financially, physically or emotionally—or who believed the prosecutors threats of a life in prison; and, they threatened witnesses with perjury indictments if the witnesses’ recollection of the facts differed from the “view” of the Task Force. Some defendants successfully defended against two trials, but caved in the face of a third prosecution for the same offenses. You thought they couldn’t do that, didn’t you?
Before Mr. Wray’s tenure in the Department of Justice as head of its criminal division, which began in 2003, the Task Force—primarily Leslie Caldwell, Andrew Weissmann and Matthew Friedrich—created a new crime and destroyed Arthur Andersen LLP and its 85,000 jobs—for nothing. “In a trial rife with prosecutorial misconduct obviously calculated to win at any cost,” they obtained a conviction, but only after 10 days of jury deliberations.
Three years later, the Supreme Court reversed the Andersen conviction in a unanimous decision, holding that Andersen’s conduct was not criminal, and it “was shocking how little criminal culpability the jury instructions required.” Those jury instructions had been drafted by the Task Force, then rubber-stamped and read to the jury a “law and order” Houston federal judge. The judge was compelled to allow Mr. Duncan to withdraw his guilty plea. Weissmann and Caldwell had coerced him into pleading guilty to something that was not a crime.
The Task Force’s tactics proved so effective in destroying Andersen, that this cabal intensified their efforts in their prosecution of four Merrill Lynch executives in the infamous “Enron or Nigerian Barge case.” Not only did Weissmann, Friedrich, and now Kathryn Ruemmler threaten to indict Merrill in-house counsel and the former treasurer of Enron who had committed no crimes, they demanded to be present for the defense’s interviews of any Merrill employees involved in the transaction or who might want to testify for the defendants.
This tactic, of course, “chilled” (to say the least) what chance there may have been that any witness would speak with a defendant. Combined with baseless threats to indict, it completely foreclosed the defendants access to any witnesses. Adding illegal insult to injury, they yellow-highlighted information favorable to the defense before the trial, but kept it hidden for six years. Four innocent men spent as much as a year in prison until the Fifth Circuit reversed their convictions and later found that these prosecutors had “plainly suppressed” evidence favorable to the defense. It should be cause for concern that these tactics all occurred during Mr. Wray’s watch, and respected Houston lawyers were screaming about them.
No matter what one’s opinion of Enron’s executives Ken Lay and Jeff Skilling, incessant negative press coverage inflamed Houston’s natural outrage, and prosecutorial misconduct infected their trial as much as the others.
The truth is that every case this cabal actually took to trial was reversed in whole or in part by an appellate court. Judges had to allow some guilty pleas to be withdrawn because of their over-reaching. If you are a doubter, look at the courts’ decisions.
For these abuses, wrongful convictions, illegal and unethical practices, the Enron Task Force cabal punched their tickets to positions of fame, fortune and great power. Friedrich became the right hand of Attorney General Gonzales, and then Acting Assistant Attorney General for the Criminal Division of the Department of Justice. There, Friedrich rushed to indict and micromanaged the corrupt prosecution of former Alaska Senator Ted Stevens—costing Senator Stevens his Senate seat only to have the jury’s verdict overturned and the indictment dismissed because the prosecutors hid evidence that proved Stevens was innocent. Sound familiar?
Leslie Caldwell, who had already worked with Robert Mueller, became a partner at Morgan Lewis—a mega firm—then was named by President Obama and Loretta Lynch to be Assistant Attorney General for the Criminal Division of the Department of Justice. Meanwhile, Andrew Weissmann became General Counsel and Deputy Director of the FBI, with Robert Mueller. Later, Leslie Caldwell brought Weissmann back to head the Corporate Fraud Section of the Department of Justice. Both Caldwell and Weissmann had been Assistant United States Attorneys with none other than Loretta Lynch in New York, so naturally, she brought them both back to DOJ.
Much of this time, in between brief respites at the prestigious Latham & Watkins, Kathryn Ruemmler was also in the Department of Justice or in the White House—as she became President Obama’s longest-serving White House Counsel.
Weissmann quietly left the Enron Task Force amid deafening allegations of prosecutorial misconduct during the Enron Broadband case, which ended in many counts of acquittals and a hung jury. That case was tried by yet another member of the cabal—Lisa Monaco—who became Deputy Chief of Staff and Special Counsel to Mr. Mueller at the FBI and then President Obama’s counterterrorism advisor. John Stossel named them “Washington Overlords.”
The real question is why all these people keep being promoted by multiple Presidents—and many with the consent of the Senate—with no question or mention about their record of these abuses?
 Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S. Ct. 2129 (2005) (convictions unanimously reversed where prosecutors sought and procured unconstitutional jury instructions);
Hirko v. United States, 557 U.S. 930, 129 S. Ct. 2858 (2009) (vacating Fifth Circuit opinion and remanding for further consideration in light of Yeager);
Regents of University of California v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372 (5th Cir. 2007), cert. denied, 552 U.S. 1170, 128 S. Ct. 1120 (2008) (bankers owed no civil duty to Enron or its shareholders).
Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896 (2010) (vacating conviction honest services conviction for prosecutorial overreaching)
United States v. Brown, 459 F.3d 509 (5th Cir. 2006), cert. denied, 550 U.S. 933, 127 S. Ct. 2249 (2007)(reversing 12 out of 14 counts of conviction against four ML executives);
United States v. Howard, 517 F.3d 731 (5th Cir. 2008) (affirming the vacating of convictions of Enron executive and grant of new trial where prosecution overreached in charging decision);
Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360 (2009) (reversing on the collateral estoppel arm of double jeopardy where prosecutors sought to retry defendants);