Federal Prosecution in the Oscars!
Last week Hollywood announced the year's best movies and actors. A Complete Unknown received lots of nominations. I saw it as the best picture if only for its reference to federal prosecution!
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Western District of Tennessee, a man who worked for a DVD production company was charged with distributing copies of Hollywood films prior to their designated release dates so that the films could be viewed without any compensation to the copyright holders.
In the Eastern District of Virginia, charges were announced against a member of the Islamic State-Khorasan Province for his participation in the detonation of an explosive in 2021 that killed 13 service members as the United States was evacuating from Afghanistan.
In the Southern District of New York, several Chinese nationals were charged for their participation in and direction of Chinese cyberintrusions into computer networks operated by the United States government and private companies.
Updates…
The realigning of prosecutors within the Justice Department continues. Matthew Galleotti, an assistant US Attorney in the Eastern District of New York will oversee the Justice Department’s Criminal Division. A formal nomination has not been made but the Administration’s approach to these matters seems to reflect a trial run in the position prior to a formal nomination. He replaces Toni Bacon, one of the prosecutors who signed the Eric Adams dismissal, who was assigned to a “department priority.” Two assistant US Attorneys who prosecuted the Eric Adams case were also dismissed. A third was dismissed for comments about DC US Attorney Ed Martin. Then, the Department terminated the Chief of the Organized Crime Drug Enforcement Task Force and reassigned more members of the National Security Division.
Paul Clement, the former Bush Administration Solicitor General who was appointed to provide a perspective of the Eric Adams case, recommended to the judge that the case be dismissed with prejudice, meaning the government could not re-file the charges. This differs from the Justice Department’s desire to dismiss the case without prejudice which would permit them to refile the charges a at later time if they desire.
A Case that was A Complete Unknown (to me)
In what I thought was the best picture of the year, A Complete Unknown begins with the federal criminal prosecution of folk singer Pete Seeger for Contempt of Congress. The scene depicts Seeger’s sentencing following his conviction for refusing to tell the House Un-American Affairs Committee (HUAC) whether certain people were members of the Communist Party. The case serves as a cautionary tale for today’s polarized politics. It also serves as a reminder that what we experience today is not A Complete Unknown in our nation’s history.
With the end of World War II and the use of an atomic bomb, a Cold War began between the United States and the Soviet Union. A fear persisted within the United States that the Soviets had infiltrated various aspects of United States society. In 1945, Congress created a standing committee known as the House Committee on Un-American Activities, eventually shortened to HUAC. The Committee’s mission was to investigate threats and propaganda designed to undermine the United States government. These investigations took the form of hearings where witnesses were put under oath and questioned about their knowledge of Communist activities. Often their work focused on government officials and well-known entertainers.
In 1955, the Committee subpoenaed a popular folk singer named Pete Seeger. The folk singer/songwriter became popular in the 1940s. While in the Army, Seeger learned of a vote taken by the California chapter of the American Legion. It voted for the deportation of all Japanese descendants, regardless of citizenship status, and it voted to deny anyone of Japanese descent citizenship. Seeger was engaged to his future wife, who was of Japanese descent. Upset by the vote, Seeger wrote a letter to the California American Legion.
“We, who may have to give our lives in this great struggle—we’re fighting precisely to free the world of such Hitlerism, such narrow jingoism. If you deport Japanese, why not Germans, Italians, Rumanians, Hungarians, and Bulgarians? If you bar from citizenship descendants of Japanese, why not descendants of English? After all, we once fought with them too. America is great and strong as she is because we have so far been a haven to all oppressed.”
When the California American Legion received it, the organization sent it to the FBI who then opened an investigation into Seeger. The investigation continued while Seeger was a member of the Communist Party of the USA and after he left the group in the late 1940s. FBI agents, at various times, spoke to Seeger and his acquaintances about Seeger’s activities and found Seeger to be forthright in his responses. Still, as Seeger’s public profile grew in the 1950s, the FBI began tracking his performances, noting the location and audience. Ultimately, this led to his subpoena to testify before the Committee.
Seeger’s testimony before HUAC took place in New York City as the Committee was investigating subversive activity in that area. After a short set of background questions, the Committee asked Seeger about an event where Seeger sang that was reported in the Daily Worker, the newspaper of the Communist Party in the United States. Seeger responded that he would not answer the question.
I am not going to answer any questions as to my association, my philosophical or religious beliefs or my political beliefs, or how I voted in any election, or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this. I would be very glad to tell you my life if you want to hear of it.
His response remained the same as the Committee questioned him about several of the other events where Seeger performed. The Committee eventually turned to Seeger’s songs, which Seeger said he would discuss, but did so in the context of wanting to know where he sang the songs. Seeger refused to discuss that for the same reason as the specific performances the Committee had already identified. Later, Seeger was asked about whether the Communist Party utilized his talent to entertain the Party members. Seeger responded,
I have sung for Americans of every political persuasion, and I am proud that I never refuse to sing to an audience, no matter what religion or color of their skin, or situation in life. I have sung in hobo jungles, and I have sung for the Rockefellers, and I am proud that I have never refused to sing for anybody. That is the only answer I can give along that line.
Following that exchange, the Committee continued to ask questions and Seeger responded in an identical fashion.
HUAC referred Contempt of Congress charges to the Justice Department. Two years later, he was indicted by the Southern District of New York US Attorney’s Office. After some initial pre-trial matters, the case sat dormant. The defense did not mind because the case was getting older. From the government’s perspective, either the case had lost importance as the Communist hunt shifted from the entertainment world to the growing civil rights movements or the government was content to hold the case over Seeger’s head. Regardless of the reason, when Robert Kennedy became Attorney General in 1961, he informed the Southern District of New York that the case had to be completed. Thus it went to trial in March 1961.
Irving Younger prosecuted the case for the government. He had not been in the office when the case was indicted. In his memoir, Younger stated he felt uneasy about the case.
Had I been a member of Congress, I would have cheerfully voted to abolish [HUAC]. It was, in my view, a mindless affront to the intellectual freedom protected by the First Amendment, but no one asked for my views, and, in any event, they were irrelevant to my role as a prosecutor. What I might say as a lawer trying a case had nothing to do with what I might think as a citizen.
Younger set about this task by focusing solely on the law and telling the jury the case had nothing to do with Seeger’s personal or political beliefs. Seeger’s counsel argued that HUAC’s activities were not related to any legislative purpose and were, therefore, unlawful. Ultimately, the government prevailed before the jury. The judge sentenced Seeger to prison which is the scene portrayed in “A Complete Unknown.” Seeger appealed the conviction and a year later the 2nd Circuit Court of Appeals reversed Seeger’s conviction because the indictment failed to allege HUAC’s legislative authorization.
At its heart, the Seeger case is about freedom of speech and freedom of association. The government wanted to compel someone to disclose his associations and their political beliefs in the name of national security. Instead of complying and avoiding unpleasant consequences, Seeger refused while, at the same time, expressing his willingness to talk about his song lyrics. Rather than respecting Seeger’s First Amendment right not to speak, the Committee sought Seeger’s prosecution. Though convicted by the executive branch, the judiciary served as a bulwark to prevent an unjust result, even if it was on what some would call a “technicality.”
The case also presents a cautionary tale for those working as federal prosecutors. The case originated under a Republican President, Attorney General and United States Attorney. With the onset of the Kennedy Administration, the Democrats took control over these offices. Irving Younger was hired as part of this transition. Rather than dismiss the case, however, the Kennedy Justice Department wanted the case tried, allowing the jury to decide. Though personally opposed to the case, Younger presented the case professionally and secured a conviction. Prosecutors are called upon to utilize their professional skills on matters they may oppose but are duty bound to present the case. As Younger would ponder in his memoir, however, where does the line fall between professionally presenting a case and pursuing a matter that could conceivably cause greater public harm?
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!