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White collar criminal defense attorney Abbe Lowell published an insightful op-ed in the Washington Post about the Justice Department's bad choices in spending millions in taxpayer dollars prosecuting John Edwards and Roger Clemens. Lowell's conclusions are well-taken:

Another concern is how prosecutors brought these cases. The Justice Department chose not to prosecute or granted immunity to people for whom evidence had showed they had committed the real wrongdoing in order to get the person the government alleged was “higher up” in the scheme. . . . The lack of proportionality is breathtaking. . . .
(emphasis added).

Lowell also points to the fact that defendants must spend millions defending themselves.

Yet the cases Lowell discusses in his op-ed are against defendants (Roger Clemens and John Edwards) far more equipped that most people to weather being at the blunt end of a government prosecution. (Lowell is also representing State Department arms expert Stephen Kim, one of six people the Obama administration has charged under the Espionage Act). The whistleblowers the Justice Department has chosen to prosecute under the Espionage Act are less prepared for the bludgeon of the criminal justice system.

As for those who say that if the whistleblowers charged under the Espionage Act are innocent, they can show their innocence at trial, I ask, "Do you have an extra 1-3 million dollars to defend yourself?" That was the estimated cost of the defense for National Security Agency (NSA) whistleblower Thomas Drake. He was charged with ten felony counts, including five under the Espionage Act. The government's case collapsed in spectacular fashion days before trial, Drake pled a minor misdemeanor, and the judge lambasted the Justice Department at sentencing for putting Drake through "four years of hell." Here are just some of the costs of Drake's "four years of hell:"

-After decades of public service, Drake will never get the federal pension he was five years away from earning;

-He had to take out a second mortgage on his house to pay hundreds of thousands for his defense;

-When the money ran out, he was declared "indigent" and defended by public defenders;

-He will likely never work in the intelligence community again, despite his decades of training and specialization in that area;

-Drake is now a wage-grade employee at an Apple story;

-He is radioactive to most of his former friends and colleagues, many of whom won't talk to him or were collateral damage due to their association with him (i.e. lost their jobs or were blacklisted because of their association with Drake).

Sadly, Drake's is not an isolated case. Currently enduring his "years of hell" is Central Intelligence Agency (CIA) whistleblower John Kiriakou, who has set up a legal defense fund to his defense. So far the fund has raised a pittance of the estimated $1 million that his defense will probably cost. Kiriakou has already lost his house and his career. Like Drake, Kiriakou will likely never work the intelligence community again, and has become radioactive to many of his former friends and colleagues.

Both Drake and Kiriakou are fathers of five. There is no doubt their being criminal defendants has impacted their children as well.

These are the costs to whistleblowers when the government uses the criminal justice system to retaliate against them. It is not simply a matter of "they will have their day in court," and if innocent their lives will return to normal. The costs are much greater.

Lowell's piece begins with a telling quote:

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . . While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. . . . If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

— Attorney General Robert Jackson, 1940

When prosecutors use their power to bring purely political cases or to retaliate against whistleblowers, they become, in then Attorney General later Supreme Court Justice Jackson's words, "one of the worst" forces in our society.

The Justice Department's priorities of late have been disastrously out of whack. The only two people to be prosecuted in connection with the Bush-era crimes of torture and warrantless wiretapping are whistleblowers who helped expose those crimes: John Kiriakou and Thomas Drake.

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