Copyright © 2018 by Mark Gabrish Conlan for Zenger’s
Newsmagazine • All rights reserved
On Monday, March
5 an obscure New York attorney named Sam Nunberg got his 15 minutes of fame.
Apparently Nunberg, whom I’d never heard of before, was involved in Donald
Trump’s Presidential campaign in its early days, before Trump took command of
U.S. politics with his spectacular June 2015 announcement that he was running
on a platform of deporting “illegal” immigrants and building a wall between the
U.S. and Mexico because all, or nearly all, Mexican immigrants were murderers
and rapists.
Nunberg didn’t
last long in the Trump campaign — he seems to have left it in September 2015 —
but the ever-widening net of Robert Mueller’s special-counsel investigation
into whether the Russian government tried to interfere with the 2016 U.S.
elections and Trump’s people helped them snagged him recently. First he met
with Federal Bureau of Investigation (FBI) agents detailed to Mueller’s
investigation and gave them good reviews in his Twitter posts afterwards. But
whatever he told the FBI wasn’t good enough for Mueller; the special counsel
slapped him with a grand jury subpoena.
This time
Nunberg went ballistic. Told that the subpoena would require him not only to show up to testify before the grand
jury on March 9 but to produce a huge list of documents, including e-mails
between him and his friend and mentor Roger Stone, Nunberg spent March 5 going
from cable news show to cable news show telling hosts of all ideological
persuasions that he had no intention of testifying or producing anything.
Told by the
first people who interviewed him, a reporting team from the Washington Post, that he could go to jail if he refused to appear before
the grand jury, Nunberg replied, “Let him arrest me.” In later interviews he
said he would “laugh” if Mueller tried to incarcerate him for refusing to
participate in a witch hunt, not so much against Donald Trump or his
administration as against Roger Stone. He told cable hosts he believed Mueller
was trying to ensnare Stone in a “perjury trap” and said he refused to be part
of a process designed to entrap a close friend.
During his Wundertag on cable TV, Nunberg had some choice comments about
President Trump. He said he suspected that Mueller has concluded that Trump
“may have done something” illegal by accepting Russian help to boost his
campaign and sabotage that of his principal opponent, Democrat Hillary Clinton.
Even if Trump did nothing wrong, Nunberg added, he “caused this because he’s an
idiot.”
Referencing a
meeting Trump had with Russia’s foreign minister and U.S. ambassador in the
Oval Office of the White House in 2017 the day after he fired FBI director
James Comey — a meeting Trump kept secret from the American people, and which
we only found out about because the Russians had a photographer there and
released pictures — Nunberg said, “Who the hell advised him to allow those
Russians in the Oval Office?”
Various
commentators on MS-NBC the night of March 5 — including Ari Melber, the
afternoon host who had actually done his network’s interviews with Nunberg —
stressed that, despite Nunberg’s light-hearted manner, defying a grand jury
subpoena is nothing to laugh at. The reason is that a federal grand jury has
major — and, I think, quite horrific — powers to hurt people who refuse to
appear before it.
Unlike a
law-enforcement interview or a Congressional hearing, a grand jury appearance
is secret. You can’t have an attorney in the room with you, though you can have
one waiting for you outside. Since the grand jury’s purpose is merely to decide
whether there’s enough evidence to indict someone for a crime and put them on
trial, not determine guilt or innocence beyond a reasonable doubt (that’s the
job of a trial jury, the so-called “petit jury” — the names “grand jury” and
“petit jury” are from the French words for “big” and “little” and merely mean
that a grand jury has more members than a trial jury), you don’t have the
due-process rights you do in other legal proceedings.
If you refuse a
subpoena to appear before a grand jury, or if you do appear but refuse to answer some of the prosecutor’s
or the grand jury’s questions (unless you’re invoking your Fifth Amendment
right to refuse to give evidence that may tend to incriminate you personally in
a crime), you can be thrown in jail in the spot for contempt. A grand jury can
have you incarcerated for up to 18 months if the prosecutor running the grand
jury can get the judge supervising it to impose the penalty. Officially the
theory is you’re not being punished; you’re simply being held until you give up
your resistance and agree to talk. But even after the 18 months are over, if
you still haven’t testified or
answered all the grand jury’s questions, the prosecutor can ask the supervising
judge to find you in contempt and sentence you to an additional six months.
There are
further nasty things a sufficiently determined prosecutor and a grand jury can
do to you if you don’t tell them what they want to. The reason for the 18-month
limit on round one is that that’s the length of time a federal grand jury is
supposed to be in office; once a grand jury’s time expires, their power to
penalize you for not cooperating expires too. But that doesn’t let you off the
hook because the prosecutor can request the appointment of a new grand jury, and that grand jury can subpoena you and ask you the same
questions. If you again refuse, the 18-month time window they can put you in
federal jail starts all over again. At least theoretically, a prosecutor could
incarcerate someone for life just by continually convening new grand juries and
hauling him or her before them until they either talk or spend the rest of
their lives in federal jail.
The Grand Jury:
Modern-Day Star Chamber
One of the
MS-NBC commentators who talked about Nunberg’s interesting odyssey through
cable TV news on March 5 justified this incredible degree of punitive power on
the part of grand juries and the prosecutors and judges who work with them as
justified on the old common-law concept that “a grand jury is entitled to every
man’s evidence.” But ever since I encountered it personally from two people,
one I met just once on her book tour and another whom I consider a close
friend, I’ve loathed this grand-jury power. If it has a parallel in British
history, it’s not the relative justice of the common law or the guarantee of habeas
corpus in the Magna Carta, but the Court of
Star Chamber, the wicked parallel judicial system set up when Henry VII won the
Battle of Bosworth Field in 1485 and started the Tudor dynasty.
An online source
about the Star Chamber, http://www.tudorplace.com.ar/Documents/the_court_of_star_chamber.htm, says it took its name from the star-shaped pattern on the ceiling in the room at
Westminster Palace where it met. “In 1487 the court became a judicial body
separate from the king's council, with a mandate to hear petitions of redress,”
the Tudor Place post states. “Under the leadership of Thomas Wolsey and Archbishop
Cranmer, the Court of Star Chamber became a political weapon for
bringing actions against opponents to the policies of Henry VIII (Henry VII’s
son and successor), his ministers and his Parliament. Although the court was
initially a court of appeal, Henry VIII and his
councilors WoIsey
and Cranmer
encouraged plaintiffs to bring their cases directly to the Star Chamber,
bypassing the lower courts entirely.”
When Queen
Elizabeth’s death in 1603 ended the Tudor dynasty and the Scottish House of
Stuart took over, the powers of the Star Chamber grew and so did its abuses. “[B]y the time of Charles
I it had become a byword for
misuse and abuse of power by the king and his circle,” Tudor Watch states. “James I (the first Stuart king) and his son (and successor) Charles I used the court to examine cases of
sedition, which, in practice, meant that the court could be used to suppress
opposition to royal policies. It became used to try nobles too powerful to be
brought to trial in the lower courts.” Though under the Tudors the Star Chamber
had met in public, under the Stuarts “court sessions were held in secret, with
no right of appeal, and punishment was swift and severe to any enemy of the
crown.”
The commentary
on Sam Nunberg cited one courageous woman who had refused to testify before a
previous grand jury called by a special prosecutor to investigate a President:
Susan McDougal. She was the wife of Jim McDougal, an Arkansas real-estate
developer who got Bill and Hillary Clinton to invest in a proposed development
called Whitewater while Bill was governor of Arkansas and Hillary a partner in
the powerful Rose Law Firm in Little Rock. The project went bust financially
and was never built, but in 1994 Kenneth Starr was appointed special prosecutor
to investigate whether Bill Clinton, then President of the United States, had
done anything illegal or corrupt in connection with the land deal.
Susan McDougal
was convicted of fraud in connection with Whitewater and was sentenced to two
years, but by the time she was to start that sentence Starr had convened a
grand jury and wanted her to testify. She felt that Starr had persuaded his two
key witnesses against the Clintons — her ex-husband and former Arkansas judge David
Hale — to lie under oath, and feared she would be convicted of perjury if she
didn’t back up their lies. When she showed up before Starr’s grand jury, she
stated her name for the record but refused to answer any questions. She was
sentenced to 18 months for contempt plus four months for fraud. She spent eight
months of her time in solitary confinement and got moved around the country
from Little Rock to Oklahoma City to Los Angeles and back to Little Rock. After
she served the 18 months for contempt and four months for the fraud conviction,
Susan McDougal finally won a compassionate release due to ill health. On the
last day of Bill Clinton’s Presidency, he granted her a full pardon.
In 2003 Susan
McDougal published a book about her experiences, The Woman Who Wouldn’t Talk, and I met her in San Diego when she appeared here
as part of her book tour. As someone who had considered the Starr investigation
a fraud and a set-up from the get-go — “the Starr Chamber,” I called it — I had
watched as Starr, unable to come up with a charge against the Clintons over
Whitewater that could stick, instead turned his attention to Bill Clinton’s
extramarital affairs and charged him with lying under oath about his
relationship with Monica Lewinsky. Clinton was impeached by the House of
Representatives but was spared when the Senate fell far short of the two-thirds
majority needed to convict him and remove him from office.
By resisting the
Starr investigation even at the cost of nearly two years of freedom, Susan
McDougal became a hero to Democrats and progressives, a courageous woman who
heroically resisted a runaway special prosecutor and an outrageously unfair
grand jury process. Naturally a journalist — Matt Zapotsky of the Washington
Post — reached out to her after Sam Nunberg’s
wild ride through cable TV news shows March 5.
In her
interview, which I accessed on line through the San Jose Mercury-News at https://www.mercurynews.com/2018/03/05/youre-not-going-to-save-anybody-what-the-last-person-to-rebuff-an-independent-counsel-subpoena-would-say-to-sam-nunberg/,
she said she would not do anything differently today even though she warned
Nunberg that being imprisoned for contempt of a grand jury is no joke: “You
don’t just go sit and work out in the afternoons.” She also told Nunberg that
he can’t count that his refusal to testify will help his friend: “If they have
done something, you’re not going to save them.”
My
Friend and the Grand Jury
The other
incident in which a grand jury investigation — and its awesome power to punish
people who won’t answer its questions — involved a person I know far better
than Susan McDougal. In the summer of 2003, radical San Diego activists David
Agranoff and Michael Cardenas organized a series of events they called
“Revolution Summer” to challenge various policies, both domestic and foreign,
of the George W. Bush administration and also target private companies they
felt were oppressing the people. As part of this series, Agranoff arranged to
bring Rod Coronado, a Native American activist who had already served prison
time for a 1995 arson fire at Michigan State University, which he set with a
homemade incendiary bomb to protest the use of animals in research there, to
speak at the LGBT Community Center in Hillcrest, San Diego.
By chance, the
same day Rod Coronado was scheduled to speak — August 1, 2003 — an arson attack
occurred at an apartment complex in La Jolla in northern San Diego. Whoever
burned down this building set up a banner proclaiming the action as having been
the work of the “Earth Liberation Front.” As Agranoff explained it to me, the
Earth Liberation Front and the similar Animal Liberation Front are not centralized organizations. Instead, they are Web
sites to which anyone can post proclaiming their affiliation if they have done
something in line with the sites’ stated principles — a decentralized structure
that groups like al-Qaeda and ISIS have also adopted for their actions in the
West.
Nonetheless,
federal authorities in San Diego and Washington, D.C. saw a direct connection
between the La Jolla action and Coronado’s speech, since he had proclaimed himself
an “unofficial ELF spokesperson.” The San Diego branch of the FBI launched an
investigation to determine whether Coronado himself had set the La Jolla fire,
or whether it had been set by someone “inspired” by his scheduled appearance
later that evening. I had covered the August 1, 2003 speech by Rod Coronado for
my own publication, Zenger’s Newsmagazine,
and my story included two photographs: a head-shot of Coronado and a picture of
him, taken during the question-and-answer portion of the meeting, holding a
half-full apple-juice jug and mentioning, in answer to a question, that this
was the sort of container he had used to set the lab fire in Michigan.
By chance, I was
the first person contacted by local FBI agents for this investigation. They
knocked on my door early one morning and said they didn’t want to have me
subpoenaed to a grand jury. Though the federal government has no “shield law”
protecting journalists from being summoned to grand juries the way most states,
including California, do, nonetheless they wanted me to agree to testify
voluntarily. I met their polite request with a polite refusal, but I talked to
them long enough to get a handle on what the investigation was about and post
online to warn my friends in Revolution Summer that the feds were on the
warpath and what questions they might be asked.
Soon a number of
people associated with Revolution Summer received grand jury subpoenas, and
later they told me of a broad and stunningly intrusive array of questions they
were asked. Among the questions the prosecutors running the grand jury had for
them were what books they read, whether they collected punk-rock CD’s, and
whether they practiced the Wiccan religion. With my overdeveloped sense of
irony, I was particularly struck that they were being asked whether they
practiced the Wiccan religion, since that made the investigation not only
figuratively but literally a witch hunt.
David Agranoff
flatly refused to cooperate with the grand jury in any way, shape or form, and
as a result he was placed in the San Diego Metropolitan Correctional Center
(MCC) for over six months. He sent out messages to his friends that what he
needed most from us were letters addressed to Irma Gonzalez, the judge that had
sentenced him. Since the stated purpose of the grand jury’s power to imprison
people for refusing to testify is not to
punish them but to persuade them to talk, he wanted people who knew him to
write Judge Gonzalez and tell her that no amount of incarceration would
persuade him to testify. I was happy to write the letter, which I did on July
20, 2005, and here’s what it said:
I have known Mr. Agranoff for over
two years. I have found him to be an honest, upright man, strongly committed to
peace, justice, the health of the earth’s environment and the rights of human
beings and animals. From the time we first met, I have been impressed by the
depth of Mr. Agranoff’s commitments and his willingness to stand firmly for
what he believes is right.
That is one reason I believe that
no amount of incarceration or other compulsion will persuade him to testify in
the current investigation. There’s another reason for my belief: in the summer
of 2003 I attended a lecture Mr. Agranoff gave at UCSD in which he talked about
other grand jury investigations into the animal rights and environmental
movements. He said that grand jury investigations into the legal, above-ground
political activities of animal rights and environmental activists were
fundamental infringements on the rights guaranteed them by the U.S. Constitution
and that under no circumstances would he cooperate in such an investigation if
he himself were called to testify. He meant that then; he means it now.
The FBI’s
investigation, the grand jury subpoenas and the incarceration of one of my best
friends for over six months in an attempt to get him to talk had no results
whatsoever. They learned that Rod Coronado had nothing to do with the apartment
fire, he had no idea who did, and indeed the case has never been solved. A
number of people involved with Revolution Summer thought the San Diego FBI was
trying to build a case against Coronado and the Earth Liberation Front to cover
up their embarrassment over the revelation that two of the 19 9/11 hijackers
had lived in San Diego for months before the attacks and the FBI had done
nothing to find or apprehend them.
Rod Coronado was
ultimately indicted in February 2006 for his San Diego speech under a Bush-era
law making it a crime to disseminate information about how to make terror
devices. The law was originally targeted at publishers of resources like The
Anarchist’s Cookbook, but in a weirdly
twisted interpretation the government decided that Coronado holding aloft a
half-full jug of apple juice at a public meeting in response to an audience
question about his previous activities constituted disseminating information
about how to make terror devices.
It turned out
that three recordings of Coronado’s speech existed — made by David Agranoff,
Michael Cardenas and me — though mine was just an audio tape while theirs were
videos. However, neither Agranoff nor Cardenas had recorded the
question-and-answer portion of the meeting. I dubbed my audio cassettes to CD
and leaked them to Coronado’s attorneys in the later stages of his September
2007 trial in San Diego, and the next thing I heard was that my recording had
been instrumental in sparing Coronado the lengthy prison term he would have
received on a jury conviction. Instead, the jury deadlocked and Coronado
accepted a government plea bargain that would cost him only a year of his
freedom.
The Switch
When the cases
involving Susan McDougal and David Agranoff happened, I hailed them as heroes
for resisting a corrupt grand jury power that I regard as antithetical to the
fundamental rights of due process guaranteed to all Americans under the Fourth,
Fifth and 14th Amendments to the U.S. Constitution. I still feel
that way. If Sam Numberg indeed defies Robert Mueller’s grand jury — a position
he backed away from just a day after he ran around the cable news networks,
saying that this time he’s inclined to testify — I will regard him as a hero
for civil liberties no matter what I
think of his politics or his motives.
Indeed, one of
the most fascinating aspects of the Trump era has been what I call “the
switch.” Progressives who for years have denounced the FBI as a political
police force aimed at suppressing Left-wing dissent are now embracing it
because it’s using its powers to investigate allegations against President
Trump and members of his administration. And Right-wingers who have long hailed
the FBI and America’s intelligence agencies in general as heroic defenders of
the national security are now attacking them on the floor of Congress and
calling for major purges of their personnel.
The FBI has a
particularly checkered past in these regards. In the aftermath of World War I,
the administration of President Woodrow Wilson saw an opportunity to suppress
all those troublesome Leftists who had stood in the way of America’s war effort
once and for all. Wilson’s attorney general, A. Mitchell Palmer, investigated
the major leaders of the American Left, found that a lot of them were
foreign-born, and ordered them deported to the newly established Soviet Union.
Palmer’s assistant in this project, which included rounding them up in secretly
organized raids, was a young attorney named John Edgar Hoover.
In 1924, five
years after the “Palmer Raids,” President Calvin Coolidge and his attorney
general, Harlan Fiske Stone, appointed Hoover to head the FBI. Hoover did the
big thing Coolidge and Stone were hoping for: he rid the FBI of the
institutional corruption that had beset it and made it virtually useless as an
investigative agency for common crime. But Hoover also put in place a political
spying operation aimed primarily at the Left, and during the 48 years he ran
the FBI — until his death in 1972 — he maintained extensive files not only on
open Leftists but mainstream politicians and anyone else he felt might pose a
threat to his power as FBI director.
The last and
most sweeping of these programs, COINTELPRO (for “Counter-Intelligence
Program”), was exposed in 1971 when a group of peace activists burglarized the
FBI office in Media, Pennsylvania and stole papers documenting the FBI’s
decades of unconstitutional and legally unauthorized actions against the
American Left. They made packets of their information and sent it to various
media outlets, but most of the recipients — including the much-vaunted New
York Times and Washington Post — returned the packets, unopened, to the FBI. However,
the packet sent to the Los Angeles Times landed on the desk of reporter Betty Medsger, who persuaded her paper
to print stories based on the information and continued to write about it for
43 years, publishing the definitive account, The Burglary, in 2014.
The FBI has not
suddenly become a politically “clean” agency just because at the moment the
President they’re investigating is named Trump instead of Clinton. They are
taking advantage of the same scummy tactics they’ve always used against
political enemies just because their current targets are a Republican president
that may or may not (probably wasn’t) have been elected with the help of
Russian interference.
James Comey, the
former FBI director Trump fired over his unwillingness to tell the world that
Trump himself was not under investigation, didn’t become a hero overnight just
because instead of screwing over Hillary Clinton, telling the world just 11
days before the election that he was reopening the investigation into her
e-mails, he refused to make a public statement that he wasn’t investigating
Trump because, as he put it in the opening statement of his Congressional
testimony on June 7, 2017, “because it would create a
duty to correct, should that change.”
Don’t get me wrong: I believe that President Trump’s
current occupancy of the White House and the enormous power that gives him,
which he uses in a stunningly arbitrary and capricious manner, constitute a
clear and present danger to America’s continuance as a bourgeois democracy and
to the civil rights and liberties of all Americans. I believe he needs to be
stopped in the one way I think he can
be stopped: by Americans coming together at the ballot box in November 2018 and
electing Democratic majorities in both the House of Representatives and the
Senate so there will be at least some resistance to his anti-worker,
anti-consumer, anti-people of color, anti-woman, anti-Queer, anti-public
health, anti-culture and pro-corporate agenda — and by massive street actions to keep up the pressure on both
major parties to respond to the real needs of the people.
What I don’t want
to see happen is the Trump administration disgraced and driven from office by
the same foul and fundamentally unjust political, legal and judicial tactics
that have traditionally been used against the American Left. I don’t want to
see Democrats and progressives coming to the aid of an agency that has
traditionally been an instrument of anti-progressive repression simply because
we think we have a temporary gain in seeing it go after Trump. And I remain
convinced that the Star Chamber-like powers a federal grand jury has to force Americans to testify against each other against their will
is an evil that cannot be countenanced in a society that calls itself free.
