Federal law enforcement desperately needs reform

For one example of their abusiveness, I report here for the first time about an unforgivable investigation under the Foreign Agents Registration Act, one of several outrageous ones of which I am aware, that shows why it should be easier to punish agents and prosecutors who improperly exploit their vast power to harass victims and even ruin lives.

This particular case comes against a backdrop of long-standing problems with prosecutorial abuses combined with a massive politicization, usually for leftist or Democratic ends, within the federal leviathan. Indeed, even during Republican administrations going back decades, the ranks of “career” employees at the DOJ have been manned by hugely disproportionate amounts of people from the Left rather than the Right.

I’ve written about prosecutorial foul play and what’s known as “overcriminalization” for years. There was the case of the seafood importer who was imprisoned for eight years for packaging lobster in plastic instead of paper while a tiny proportion of his crustaceous haul fell below size limits. There was the clean-energy fuel cell inventor who was imprisoned for 21 months for inadvertently mailing his package by air instead of by ground transport. There was the man who developed pollution-control technology and was not just fined but criminally prosecuted because a minute percentage of his “rinsewater” allegedly was slightly too acidic. Those charges were dropped when defense attorneys found proof that overzealous enforcement agents falsified the records to change the pH readings to justify their ill-advised raid.

Now comes the case of Mark Corallo, the former communications director for the DOJ with a well-earned, bipartisan reputation for integrity and smarts. I’ll admit to a bias here, as Corallo has been a friend for 40 years, but the facts would speak for themselves regardless of my bias.

Corallo was doing public relations work for one of Trump’s (then-president) former lawyers related to the Russia election interference investigation when, believing that some in Trump’s orbit suggested he do something unethical, Corallo publicly withdrew from the possibly lucrative case rather than be compromised in any way. (As I said, bedrock integrity.)

Still, that put Corallo in the news (again) as a high-profile Republican.

Not long after that, lawyers with whom he was newly dealing advised him that, in an abundance of caution, he should file a FARA (see above) form relating to representation several years earlier of a private, foreign client for a project that lasted only about three months. No other lawyers with whom he frequently dealt had thought the representation required a FARA form, but Corallo quickly complied. Bizarrely, even though he actually did file under FARA, a Javert-like FBI agent opened a criminal investigation against Corallo, one that he spent three years fighting at tremendous legal expense and at the cost of huge damage to his business — all of this despite the absurdity of the investigation being patently obvious from the start — only to finally be given an “all clear” notice, with no charges ever filed against him for a nonexistent crime.

Corallo’s client had been Gilbert Chagoury, a Lebanese Nigerian businessman, diplomat (to the Vatican), and philanthropist. An outspoken advocate of Christians in the Middle East, Chagoury, back in 2010, was detained for four hours at an airport because he was mistakenly included on the “no-fly” list. The Department of Homeland Security issued an apology, but Chagoury enlisted Corallo for communications help to clear his public name. Since then, Corallo had done other work for Chagoury, some of it pro bono, all very publicly, as there was no reason to hide it.

In December 2014, Chagoury again engaged Corallo for a brief project, this time to promote the image of former Nigerian President Goodluck Jonathan, who was then running for reelection. The goal was to influence Nigerian nationals living in the United States to support Jonathan and for Chagoury’s efforts to be publicly noted. (Jonathan, for what it’s worth, was a pro-Western leader, accused of some corruption but firmly against the Boko Haram jihadist terrorists and with a record of efficient and humane responses to a lead-poisoning incident and to an Ebola outbreak. His democratic bona fides are solid: When, in early 2015, he lost his bid for reelection, he became the first Nigerian leader ever to concede electoral defeat and make way for a peaceful transfer of power.)

Corallo was not representing the Nigerian government itself, nor was he trying to affect U.S. government policy. In effect, he was doing public relations work for an independent expenditure campaign. As it was, Corallo, a one-man shop, did not have the bandwidth to do the full-scale effort Chagoury wanted, so he farmed out much of the work to a much larger firm known for its prominent Democratic principals. When Chagoury did veer into asking for meetings with government officials, Corallo sent him to a lobbyist instead, as Corallo doesn’t lobby.

Corallo didn’t even consider filing under FARA for the simple reason that FARA was long understood to apply, and in practice, almost always had applied only to cases where foreign governments or their direct agents tried to influence U.S. government policy. As Corallo was representing an individual, not a government, and was not trying to influence U.S. policy, but instead to do PR work aimed at Nigerian nationals now in the U.S., it never occurred to him (or to outside attorneys he worked with at the time) to file FARA documents. As a longtime public representative for Chagoury on other matters, there was no reason at all — no mens rea, which is the legal term for an illicit “mindset” — to hide his representation this time.

As it is, the long history of FARA enforcement has been aimed more at compliance than at prosecution, as the whole point of FARA is disclosure, not prohibition of activity. When Corallo in 2018 did file the FARA forms, some three years after his mere three months of engagement on the Chagoury-Goodluck assignment, he abundantly, if belatedly, complied with the whole point of FARA. There was no harm done, so there should have been no call of foul, and certainly not an inordinately invasive criminal investigation.

Indeed, the FBI opened no investigation at all of the much larger Democratic firm that Corallo sent much of the work to — a firm with actual in-house lawyers who never thought to file under FARA until Corallo’s lawyers advised them to do so after Corallo himself filed. (Remember that Corallo himself filed the FARA documents voluntarily, of his own accord, as soon as lawyers advised him to do so, all before he was told he was under criminal investigation. The Democratic firm likewise complied as soon as it was advised of the situation.)

Repeat: No criminal investigation of the Democrats working for the same client, Democrats who filed FARA forms after Corallo did. Yet Corallo was put through the wringer for years, almost ruining his one-man business in the meantime. This was all for an inadvertent oversight based on Corallo’s very common understanding that FARA did not apply to efforts unrelated to government policy and all for a small, entirely above-board public relations project with no ill motives and no victims.

Although Corallo eventually and rightly was cleared via what he described as a rather snide letter from the DOJ’s counterintelligence chief, and although the investigation tactics were patently abusive, there has been no apology from the DOJ and no known discipline against the FBI special agent who targeted Corallo and Corallo alone, but not the Democratic firm.

I am aware of other cases eerily similar to Corallo’s, again targeting only Republicans but not similarly situated Democrats, that for legal reasons cannot yet be written about.

Such rank abuses, especially with a partisan or ideological agenda favoring the Left, have long been a problem. For example, in 2009, I was one of a small team that first broke and then repeatedly touted the story, which eventually became a major cause celebre for conservative activists, of the Obama DOJ’s decision to drop an already-won election-intimidation case against radical members of the New Black Panther Party. It turned out that leftist department lawyers openly had called for enforcing the applicable laws only against white perpetrators who victimized blacks, but not vice versa. Nor would they apply such laws unless they helped Democratic (and only Democratic) turnout.

As the Washington Examiner repeatedly has covered, and as my colleague Zach Faria comprehensively limned on Dec. 5, federal justice agencies are outlandishly prone to abusive and politicized prosecutions and persecutions, including the targeting of both parent-activists and of traditionalist Catholics as possible “domestic terrorists,” the dangerous dawn home raid at the child-filled home of a peaceful pro-life protester and refusal to drop ludicrous charges against him, the aggressive prosecution of other peaceful pro-lifers while failing to prosecute violent pro-choice activists, and the copious other examples. Yet even when the families of conservative Supreme Court justices are threatened, for example, the DOJ actively discourages federal marshals from enforcing crystal-clear laws against picketing jurists’ private homes.

Enough is enough is way too much. What’s needed in the short run at the DOJ and the FBI is not just housecleaning but major fumigation. This doesn’t mean burning the whole place down, but it does mean diligent and even courageous reform. Long-term, it also means entirely reconstituting the department’s toothless Office of Professional Responsibility. More importantly, it means Congress should pass legislation specifying that “immunity” protections for law enforcement should be considerably less than absolute so prosecutors or investigators who clearly violate their vast powers will be subject to severe penalties or even prosecution themselves.

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As then-Attorney General Robert Jackson, later a Supreme Court justice, famously said, “The prosecutor has more control over life, liberty, and reputation than any other person in America.”

If major misconduct occurs while that power is wielded, there should be hell to pay.