DOJ’s Twisted Notion of Rule of Law Is Poisoning Our Country

Yesterday, Tim DeChristopher was sentenced to 2 years and a $10,000 fine for his successful efforts to expose an improper BLM drilling auction.

At his hearing, DeChristopher rebutted the prosecution’s claim that he needed to face a tough sentence to uphold rule of law.

Mr. Huber also makes grand assumptions about my level of respect for the rule of law. The government claims a long prison sentence is necessary to counteract the political statements I’ve made and promote a respect for the law.


This is really the heart of what this case is about. The rule of law is dependent upon a government that is willing to abide by the law. Disrespect for the rule of law begins when the government believes itself and its corporate sponsors to be above the law.

Mr. Huber claims that the seriousness of my offense was that I “obstructed lawful government proceedings.” But the auction in question was not a lawful proceeding. I know you’ve heard another case about some of the irregularities for which the auction was overturned. But that case did not involve the BLM’s blatant violation of Secretarial Order 3226, which was a law that went into effect in 2001 and required the BLM to weigh the impacts on climate change for all its major decisions, particularly resource development. A federal judge in Montana ruled last year that the BLM was in constant violation of this law throughout the Bush administration. In all the proceedings and debates about this auction, no apologist for the government or the BLM has ever even tried to claim that the BLM followed this law. In both the December 2008 auction and the creation of the Resource Management Plan on which this auction was based, the BLM did not even attempt to follow this law.


I’m not saying any of this to ask you for mercy, but to ask you to join me. If you side with Mr. Huber and believe that your role is to discourage citizens from holding their government accountable, then you should follow his recommendations and lock me away. I certainly don’t want that. I have no desire to go to prison, and any assertion that I want to be even a temporary martyr is false. I want you to join me in standing up for the right and responsibility of citizens to challenge their government. I want you to join me in valuing this country’s rich history of nonviolent civil disobedience.

And in response, of course, the judge did lock DeChristopher away. It’s a farce given the facts of the case, but consider how it looks when, as DeChristopher invites, you consider DOJ’s other efforts to “uphold rule of law.”

Compare the damage–if any–DeChristopher’s actions did to that which BP has done. As bmaz noted in April, a year after the Macondo explosion, no one has yet been held accountable for 11 deaths, to say nothing of the physical damage to the Gulf. And as Jason Leopold recently reported, our unwillingness to heed whistleblowers has led to more damage from BP. Part of the problem, of course, is the difficulty finding a judge without a financial interest in BP.

Or compare DeChristopher’s punishment with that of Massey energy. DOJ has records that Massey faked safety records for the Big Branch mine, yet over a year after 29 people were killed, no one has been held responsible. Don Blankenship not only got to retire with $12 million, he continues to get paid by the company as a “consultant.”

Or compare DeChristopher’s punishment with that of Angelo Mozilo or Lloyd Blankfein. Between them, they had a huge role in causing Americans trillions of dollars in preventable losses. After fining Mozilo $67 million he won’t pay personally, DOJ judged that Mozilo’s actions did not constitute criminal wrongdoing, so he remains free to enjoy his corruptly gained riches. And in spite of the apparent fact that Blankfein lied to Congress last year about the ways Goldman crashed the economy, DOJ has only now begun to make motions of investigating his lies.

And consider the others who tried to expose government wrong-doing. The government spent three years trying to prosecute Thomas Drake for whistleblowing–apparently because they suspected he leaked details of the illegal wiretap program. And it is currently pursuing a strategy that may land James Risen in prison–Risen says, in retaliation for his reporting on the illegal wiretap program. Yet DOJ went to great lengths to avoid holding anyone responsible for actually doing the illegal wiretapping.

We’re about to try Abd al Rahim al-Nashiri for his alleged role in the USS Cole bombing, which is fine. But the government not only hasn’t punished his torturers, but it hasn’t punished those who destroyed exonerating evidence of his torture.

DOJ has apparently given up any pretense of supporting the rule of law. The law is a tool used to punish political protest and exposure of wrong-doing. And it is a tool to protect the corporations whose crimes do far more damage to this country.

John Robb recently predicted that after a Soviet-style collapse, our legal system will collapse.

What happens to the legal system when the US suffers a Soviet style collapse?  Answer:  It will rapidly decay.

Here’s a simple formula for this (it works for both legal systems and government bureaucracies):

Low legitimacy + slashed operating budgets = rampant corruption

Regardless of any decay in the legal system, business will still be conducted.  Small disputes will be resolved through the existing system, with graft tipping the scales or speeding the outcome.  Large disputes involving substantial wealth transfer will be something else entirely.  These disputes will be resolved through the ability of one party or the other to apply the threat of (or actual) violence to the negotiation process.

These pressures won’t only be the result of counterparties that have access or control the large mafias/gangs/militias (or corporate militaries) that will spring up during economic collapse (far larger than we’ve seen the US to date).  Threats will also be mounted by government/defense/security officials that use their government sanctioned command of violence (police, SWAT, military units, etc.) as a means to personal enrichement.

But (as his suggestion about the impunity people like Mozilo and Blankfein were given shows) he gets the chronology wrong. Aside from the bribed BP judges, it’s not corruption per se that is collapsing our judicial system. It’s the apparently conscious choice on the part of the government to void the concept of rule of law, the choice to treat political speech and whistleblowing as a much greater crime than the corporate crimes that have devastated our country.

I think DeChristopher is right: seeing his sentence isn’t going to scare anyone into cowing in the face of such a capricious legal system. Rather, it makes it clear what the stakes are.

37 replies
  1. Jim White says:

    So, the Department Formerly Known as Justice will operate more along the lines of 1984 (Big Brother in control) than Mad Max (grab it and growl)?

  2. Sharon says:

    I’m glad I saw that you have a new place on the web EW. Didn’t know you moved from A2 either. FDL got too frenetic and I rarely went there any longer. I’ve bookmarked this site since I always love your posts.

    I’m so glad there are people like Tim DeChristopher in these dark times.

  3. rugger9 says:

    What the MOTUs don’t understand is that the rules of the game when agreed to and followed, operate far more efficiently than the laws of the jungle. For example, the reason many companies are chartered in Delaware, even when the tax breaks aren’t particularly favorable, is because the Chancery Court provides a level playing field and quick decisions. That means companies can move forward after a dispute with minimal expenses to the legal system. In the jungle model, however, it’s never really over and can drag on with lots of collateral damage. Plus, the ones who consider themselves MOTUs will only get more arrogant as time goes on.

    If DeChristopher was “connected”, he’d be on probation at the most. The examples in the post are telling, to which I would add the continuing saga over Amerithrax to pin the blame on anyone other than the Cheney cabal. Heck, even “St” Petraeus lost 9 Billion dollars in cash and a bunch of AK-47s in Iraq, and he’s now CIA director (and future GOP nominee IMHO), demonstrating the value of connections. BTW, has anyone found the missing bomb from Minot that didn’t make it to Barksdale? I haven’t seen anything about that in a while….

  4. rugger9 says:

    While the MOTUs play short-term angles for short-term gains after which they leave with a golden parachute, the infrastructure of the company is neglected, cash depleted, leaving it vulnerable to shocks.

    Remember that a lot of this started with Icahn and his ilk, who as hostile shareholders demanded total profitability [to their satisfaction] every reporting period regardless of the plan or the external situation. In response, otherwise far-seeing execs had to pump the profits or get sued. Combined with the tax cuts that made it profitable for individuals to raid the company treasury with excessive compensation, these led to the myopic, greedy mindset that dominates corporations now.

  5. Mary says:

    ““As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”

    Clarence Darrow, who was in an entirely different profession than the current employees of DOJ

  6. Mary says:

    No comfort to DeChristopher, but Scopes was found guilty as well.

    The truth is that it is a horrific and devastating thing to lock someone away in a jail or prison. The power to do such a horrible thing to someone who lives in your community should be an almost sacred trust. Those who abuse that power destroy lives and the they ultimately destroy our communities. But over the last decade, the DOJ has created a culture that doesn’t respect the horror of its power, but instead revels in parcelling out the power to to dehumanize and disappear to cronies and political allies. Once you had a DOJ that was issuing – and still abiding by – opinions that allow people to be bought from traffickers, disappeared, tortured, probed, experimented upon etc. while children and family were left with no one to protect and feed them as some of the collateral damage – once that became DOJ’s function, its foundations were fouled irreparably.

    The halls of Main Justice have become the Vel d’hive of the American GWOT, where values were rounded up before being sent off to die.

  7. emptywheel says:

    @Sharon: Yup, moved from Ann Arbor a year ago, almost exactly (though it took a while to sell the house).

    Glad you found us. We’ll still get loud in trash talk but it is sort of quieter here.

  8. DWBartoo says:

    Thank you, EW.

    One wonders how many people IN the legal profession have ANY interest in what is going on?

    The “law” is being used to destroy the rule of law AND civil society.

    Yet, where is there compelling evidence that MOST of those who “practice” the law are concerned, in the least, about that rather clear and obvious truth?

    I have written, in the past, about the appalling inability of the federal judiciary to recognize patterns of deceit, coercion, and bogus appeals to National Security, undertaken by the DoJ. However, now I should like to ponder upon the apparent disinterest, on the part of attorneys and legal scholars, and yes, even judges throughout the nation, in noticing, even in the smallest of ways, that something is dreadfully wrong. I raise this concern since the only “evidence” available is a roaring silence.

    Let us take a simple though blatant example. Not long ago, President Barack Obama stated that Bradley Manning was guilty of breaking the law. Now, Barack Obama is entitled to his opinion, just as everyone is. However, in this nation we have an old, some will say “quaint”, notion that goes like this: Under the rule of law, a person is held INNOCENT until proven guilty in a legitimate court of law. (Okay, I threw that word “legitimate” in there since its assumption, these days may not be reasonable or appropriate.)

    Did the legal community, as a whole, from “top” to bottom, and eveything in between, rise up in protest? Did the “legal community, from law schools to the dozing “defense” attorney who will see his or her “client” for fifteen minutes just before trial say, “Hey, Mr. President, YOU are educated in the law, and you must know that when a person of your stature makes such a public prononucement, it will have a chilling effect upon justice?”

    Other than a few comments on the tubes, most at this site, there was NO such outcry or admonition, that reached the “public” sphere, merely that roaring silence …

    In this country, today, we see trials which, for all intents and purposes, are “tried” in public by frigging tabloid “news”casters, such that a woman who resembled, slightly, the defendant in a much publicised capital case, is pursued by another woman who crashes her vehicle into the first woman’s vehicle not once, but twice, finally causing it to roll over … Again, in a reasonable society, one might expect the entire legal profession to quickly speak up and seek to educate the public about the dangers of deliberately riled up emotions … of rules of evidence and the meaning of “beyond a reasonable doubt”. Several well-known and nationally “famous” attorneys did write editorials about the case in question addressing those issues, but mostly, silence.

    Instead, as bmaz has documented, we have other “attorneys”, such as the gentleman who represented “the maid” in the DSK circus standing behind a microphone and behaving in a fashion that should have had the legal community completely embarassed or disgusted, from coast to coast. Making some of the most incredible statements, this side of Congress, which I have ever heard from someone who supposedly has a degree in the law and claims to be in the process of “defending” his client. This “attorney” engaged in blatant self-promotion while performing like some hackneyed movie portryal of a mobsters “mouthpiece”.

    It ain’t just the DoJ, the entire legal community, from SCOTUS on down to the very bottom, has failed to live up to the standards of conduct and capacity which a legal system MUST have … if it is to be anything more than a means by which a deteriorating status quo is protected at the cost of truth, justice, and humanity.

    Consider the DoJ’s “poisoning” behavior but a symptom of a far larger and destructive malaise, intentionally brought about … and just as intentionally, too often, “tolerated” or “accepted”.

    My concern is that too many American citizen are willing to “tolerate” the destruction of the rule of law by being led to believe it a distant goal and an unobtainable “ideal”.

    The failure, apparently, of the legal profession, to understand and to care will become quite contagious “looking forward” and such “social disease”, if it becomes sufficiently widespread, may well lead to very terminal results.


  9. rugger9 says:

    As a side note, Scott Herhold wrote a column earlier this week in the San Jose Mercury News about how the LAPD chief was still trying to convict Suspect #1 in the Stow beating at Dodger Stadium weeks after it was clear they had the wrong guy, it’s worth reading in its entirety. It describes the situation quite similar to the Amerithrax investigation, in that they had to hold “someone” accountable, especially in the press, so that the infallibility of the law enforcement community is maintained.

    Justice is about getting it right, not “winning”, but try telling that to a DA with political aspirations.

    • bmaz says:

      Oh, that ALWAYS happens, because they desperately try to avoid or mitigate lawsuit losses and end up making the damages geometrically worse.

  10. Katherine M Williams says:

    Consider the difference between how J. O’Keefe’s several illegal and deeply harmful actions have been “handled”, and DeChristopher, who was trying to help America and Americans.

  11. Francine Fein says:

    The site looks great — so much easier to read the comments now — and I always learn so much from the comments.

  12. JThomason says:

    “There too will be a comeuppance for the dandy government squire.” So sayeth the book.

  13. Bob Schacht says:

    EW, thanks for this important status report. You wrote:
    “The law is a tool used to punish political protest and exposure of wrong-doing. And it is a tool to protect the corporations whose crimes do far more damage to this country.”

    IOW, the law is a tool used by the Establishment against its opponents. Impartiality is possible only when the Establishment has no dog in the fight.

    This is not just an American problem.

    Bob in AZ

  14. EoH says:

    The DoJ is neither describing nor upholding the rule of law. It is describing and upholding a form of mob rule, where the mob is no longer the hoi poloi, but corporate fraudster. At least Sicilian crime bosses are human and die, occasionally in a grisly way, whereas America’s best and brightest corporations continue indefinitely.

    Acton’s famous phrase about the corrupting influence of power was a pithy truism, an observation that no one not a courtier of power would contest. The concentration of power we now face is much greater than anything we have faced since the first Gilded Age. Technology, however, has greatly increased the grasp of that power.

    Limiting the obvious adverse consequences of such power is the cornerstone of the American Constitution and the rule of law on which it depends. Little wonder that formalizing the demise of the rule of law is Mr. Obama’s greatest passion. That he once claimed to be a constitutional scholar is one of the great ironies of his career. I suspect more are still to come.

  15. EoH says:

    The legal system is already crumbling. Mr. Obama’s DoJ is the people’s Exhibit One to that observation.

    Mr. De Christopher’s actions harmed no one except the reputations of the government agency responsible for managing such bids and the corporate bidders who participated in a rigged system. Instead of correcting the bidding system, undoing the rigging, Mr. Obama throwing stones at the public spirited citizen who exposed wrongdoing. He thereby strengthens and entrenches the wrong while making it harder to correct it.

    Mr. Obama has easily surpassed George W. Bush and Dick Cheney as America’s worst president. And he lacks Mr. Bush’s ignorance and laziness as a defense.

  16. KWinIA says:

    DWB, it’s not that we “are willing to “tolerate” the destruction of the rule of law” so much as we see nothing that we can do to hinder it. I’ve talked to friends that are attorneys. They don’t want to talk about it. They just want to practice what they learned as the law in their little corner of the world. They don’t want to call attention to themselves by making waves. What are we to do?

  17. rugger9 says:

    @Katherine M Williams:

    O’Keefe is an excellent example of the “who you know” standard. Only several easily documented felonies and false reports are tied to him, yet he not only walks free, he’s not even on the “no fly” list. Hmmmmm……

  18. Cregan says:

    Somehow, between Ghandi and Christopher the idea of “cost free” civil disobedience came into being.

    The heroism of civil disobedience is that you are risking suffering a penalty for exposing something.

    Otherwise, you might as well send out an email.

  19. EoH says:

    The usual point about civil disobedience is that, at considerable cost, it outs corruption and brutality. That’s the point, not that those who benefit from corruption and brutality punish those who point out that’s what they do.

  20. DWBartoo says:

    At least those attorneys who actually appreciate what the rule of law is, and what it means to reason and to justice, to civil society, deserve credit for that, KWinIA.

    As I suggest, it my concern that far too many citizens of this nation do not appreciate the importance of the rule of law.

    However, if I may be rather blunt, the need and necessity of attorneys daring to speak out, to other attorneys and to the public is in the nature of repaying a debt to the society which many in the legal profession have received substantial rewards from. Of course it is a risk, a several-fold risk, to reputation, advancement, and even, possiby, to life and limb. I remember the freedom riders, having known several personally, and the courage it took for them to stand against brutal, even murderous injustice.

    And this very post begins with the story of Tim DeChristopher, a profile in courage that ought to be understood as example, not merely of a legal system in the free-fall of deliberate and intentional failure, but especially as an example of the courage necessary to all of us who care.

    If we are not willing to put ourselves on the line, stepping backwards in the hopes that others will be willing to step forward, then we are hardly in a position to tell ourselves and each other that we did the best that we possibly could.

    I would also remind you that the courageous legal mind, whether Cicero’s or Jefferson’s will form the words that, when spoken AND heard, may transform the world and thereby erect the basis, the essential foundation, for civil society.

    We must find the courage to encourage ourselves and each other, for such wisdom as reticence may be perceived as being, may quite possibly result in the dawning awareness of saving oneself merely to discover that one has actually lost that self to the expediency of fear and the pragmatism of a soul-destroying “safety” which is not a deliverance but a resignation to the imprisonment of both self and such principles as one may claim to embrace.

    Take this as you will, KWinIA, but it is my considered conviction that we have all been preparing for just this time AND this challenge for all of our lives …

    I am told that there are legislators in Congress who are very upset and deeply concerned with the direction which the unitary executives are forcing this nation and this society. If that is so, then those representatives of the people must come to realize that their ONLY true power comes from an informed electorate and, as well, the only true protection such legislators may have, should THEY decide to find the courage to stand and to question, out loud, and in public … precisely WHAT they have determined, or fear, is going on.


  21. KWinIA says:

    @DWBartoo: I agree with what you say though I am hardly as eloquent. I cheered the lawyers of Pakistan when they took to the streets because their Chief Justice was forced from office by Musharrif over a legal ruling he disagreed with. I couldn’t get lawyers in my own town to even discuss it. I couldn’t get them to discuss going to war without a declaration of war, taking homes without a proper chain of title, forcing people to buy health insurance that they can’t afford to use, breaking contracts with workers while upholding contracts with executives. If they, who have studied the law, don’t think that the law applies to everyone equally or afraid to say so, how do we proceed?

  22. DWBartoo says:

    How, in good conscience, may we retreat?

    I also am aquainted with several attorneys who are content to play with their own toes, KWinIA, studiously looking at little else, hearing little, and desiring to know, or acknowledge, even less.

    And while I think this mindset-in-concrete, or something equally rigid, may be found in many professions, at the moment it is most lamentable among those who do have some idea of how the law actually functions … or should.

    Which is one very important reason why I have such deep and abiding respect for those attorneys, here, who dare speak, eloquently and well, to the central and critical legal issues, insanities, and implications with which we are contending.

    Frankly, KWinIA, it is a twofold dilemma, for before a community of shared courage may evolve we must first, individually, resolve our fears into will and our doubts into conviction. This is no easy task and we each must do this, ultimately for and by ourselves, else we are merely play-acting at courage and will be caught out, if not by circumstance, then by our own lack of true investment.

    All journeys, it is said, begin with the first step. In this endeavor that first step MUST be inward, toward a serenity of purpose and the recognition of self as strong enough and centered enough to step out, to act from clear, and central, moral integrities of self, regardless of obstacle, real, perceived, or simply imagined.

    It takes true humility and self-conscious courage to let go fear, doubt, and the disapproval of peers, and others anxious for our safety, or concern by self or others that one might be putting one’s future or even life at risk.

    This is where a fundamental appreciation of life, of the possibility of it, of the joy and experience of it, must be understood not by one’s connection to it but by one’s privilege of having it and obligation, therefore, to all of life.

    This may sound simplistic or even absurd, but those who have sought this “place”, or “space”, or “perspective”, will know and understand, as much as any of us are capable of understanding on that level, what it is I am seeking to convey.

    This journey is of the heart as much as the head.

    Its happy destination is NOT assured, and while we may have a clear “picture” of “where” we wish to “end” up and even of some of the likely pathways of getting “there”, we must operate with the understanding that we are, ultimately, defined by what we dare, in conscience and humanity, to do.

    Should we gain a sufficient sense of determined self-will, then we may move outward again, not to “rally” the “troops” but to meet other souls who have likewise (by whatever means) determined to become, to be. To be … alive and to take responsibility for OUR shared time and shared world.

    Be there world enough and time?

    Ah, how shall we know unless we try?

    Let me put it to you this way, KWinIA, what more important thing, what more important endeavor may we embrace than seeking through the efforts of our lives, to leave this world not merely a better place, but also a better time for those many beings, humans among them, who should have the possibility of meaningful life and of time conducive to life, to liberty, and to the pursuit of happy and worthwhile beinghood?

    It is also said that we are spiritual beings having a human experience … and I dare say that our species will continue to exist upon this planet, which is paradise, for our human “purposes” … only if we find our collective humanity and cherish it, each of us, as magical and meaningful … and, already, far too short, for most of us.

    Time, really, is ALL human beings ever get to “spend” and it is best to spend it with kindred spirits, engaged in the most worthwhile endeavors which we may imagine.

    Life is but a dream.

    And only the living may intentionally choose to turn away from nightmares and embrace the light of reason, tolerance, and understanding.

    Our greatest enemy is unreasoning fear, and those who would seek to inculcate such fear are a very sorry lot indeed.

    And yet, I am convinced that such beings are out numbered, hugely, by a common humanity of decency and love.


  23. P J Evans says:

    Actually, they completely exonerated the first guy this week – they’re now saying that it took them a long time to do it because of how long it took to follow all the leads to the other guys (who had been making themselves unpleasant enough that people had complained about them to the police that night.

  24. orionATL says:


    remarkabe, beautiful writing.

    your comment gets to the heart of state power and the abuse of that power.

  25. Mary says:

    @Cregan: I wouldn’t be so sure that we haven’t progressed to the point where sending out an email might not involve risks of loss. But point taken.

  26. Mary says:

    @orionATL: Nothing as filled with typos as anything I post is beautiful, but thank you. There is an enormity in being locked away, but it’s an enormity that is nonetheless so easy to ignore – out of sight, out of mind.

    The fact that “prosecutor” isn’t jailor and never has to see and live with the outcome of their actions just removes the humanity of the prosecutorial interaction that much more. And when its a Federal Proseuctor, they really are almost never even a part, in any real sense, of the community of families that they affect with their actions.

    It can be an incredibly important calling for the right person and I worked with some ex-prosecutors when I was young who I thought were wonderful lawyers. There are always bad guys in any profession, and they get exponentially worse as their profession/insitution accumulates more and more power. Still, when the institution stands for something important and of value, it often has huge amounts of very good people.

    The difference has been that over the last decade, the people in whom the power of the institution has been vested didn’t just turn that power to external evil, they turned it towards fundamentally reshaping the institution itself. Anyone who is a part of it now isn’t someone who was attracted to a good and useful institution that stands up for the victims and protects the weak from the rampages of the strong. They just aren’t. It isn’t a home for anyone with baseline decency.

  27. Gitcheegumee says:


    “In times of universal deceit,telling the truth becomes a revolutionary act.”
    George Orwell

    “These days, just trying to be a decent human being is an act of heroism.”

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