When I was in law school, I went to hear Chief Justice Rehnquist speak. He told a story of going to visit Finland, and meeting with their attorney general. The Chief Justice asked the attorney general whether the highest court in Finland could overturn an act of its parliament. She didn’t know the answer. She huddled with her staff for a few minutes, then told Rehnquist that they think their Supreme Court could, but the issue had never come up, because their high court had never tried.
Rehnquist told the audience that he thought this was just straight up freaky (not his words). And then began to wonder why he thought this was so strange. He concluded that there is something in the American psyche — especially in the part of the American psyche that lawyers seem to embrace — that feels compelled to push power to its outer limits.
This is a dangerous thing to think about if you think that our law enforcement community — from the lowly beat cops to an FBI forensic accountant — shares this disposition.
It’s an idea perhaps best explored by The Onion in Insecure, Frustrated Bully With Something To Prove Considering Career In Law Enforcement.
Friends and family confirmed that [the frustrated insecure bully], an unpredictable, petty individual who frequently loses his temper when he feels he is being threatened or disrespected, has in recent months been inquiring into joining the ranks of the Raleigh Police Department. In this role, the man with a massive chip on his shoulder and no visible sense of empathy would be tasked with peacefully resolving disputes and evenhandedly administering justice to members of the community over whom he would have official power.
There’s a cultural shift happening in our law enforcement communities, and that shift matters to folks doing white-collar criminal work as much as blue-collar criminal work.
Since the dawn of the drug war and picking up after 9/11, the police are becoming increasingly militarized. As any parent of an elementary school aged boy knows: to see a toy is to want it. Police departments see tanks, and drones, and assault rifles, and they want them.
And they get them.
The ACLU issued a great report on this in June, documenting how police departments have ramped up their use of SWAT teams, how SWAT teams work, and how they are, basically, little private militaries attacking civilians in our country.
There’s a pipeline from military tactics to police tactics. And if a law enforcement strategy is being tried in a blue-collar case, it’ll wind up in a white-collar case.
Who can forget Alec Baldwin in “The Departed” hugging a Boston cop and cheering “Patriot Act” as the feds wire up the mob guys? It was a great scene — it’s a great movie.
You know who likes that movie besides me? Preet Bharara. He quoted it in his Harvard Commencement address. He also used the same wiretap technology celebrated by Alec Baldwin — and developed in blue-collar cases — when his office went after Raj Rajaratnam. And, despite a cry from the white-collar defense lawyers of the world, that practice was upheld by the Second Circuit.
But tactics are only the start. Another huge problem with militarizing our police is that it helps law enforcement think about the people they go after differently. It’s easy for cops to see everyone in the streets they patrol as potential trouble makers who need to be stopped.
The worst part of outfitting our police officers as soldiers has been psychological. Give a man access to drones, tanks, and body armor, and he’ll reasonably think that his job isn’t simply to maintain peace, but to eradicate danger. Instead of protecting and serving, police are searching and destroying.
White-collar law enforcement gets the same attitude. They go to the same trainings. They have the same weaponry. Indeed, they use the same SWAT teams that the ACLU was complaining about.
Take, for example, the story of ultramarathoner Richard Engle. A documentary was made of him and his struggle to overcome addiction and his dedication in ultramarathoning. One person who watched the documentary was an IRS agent named Robert W. Nordlander. Mr. Nordlander described his reaction to watching this uplifting tale of personal dedication and transformation:
[b]eing the special agent that I am, I was wondering, how does a guy train for this because most people have to work from nine to five and it’s very difficult to train for this part-time.
Nordlander was so moved, he opened a criminal investigation into whether Engle was shady, based on nothing more than seeing him positively depicted in a movie.
On one hand, it’s hard to dislike someone who converts schadenfreude into action. On the other, who does that? Who watches TV, looking for stories of personal triumph that can be shattered? (other than the guy who brought down Lance Armstrong.)
Here’s my theory — the folks who do that see their fellow Americans as a target rich environment.
That attitude doesn’t come from Andy Griffith; it comes from G.I. Joe.
And it’s a problem for everyone.
Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.