The SilvergLatest

The Department Of Justice's Assault On State Political Culture

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 21 Aug 2014 20:05:33 GMT

Just as the Probation Department saga dies down in Boston, another federal trial of a state public official—former Virginia governor Robert McDonnell—is making national headlines. These two recent cases, and a judge’s comment in the case of former Illinois governor (now federal prisoner) Rod Blagojevich, demonstrate the alarming trend of federal prosecutors using criminal indictments to intrude on state political cultures, all the while the news media cheer rather than ask hard questions.

You can access the article online here.

As always, I appreciate your feedback on the topic at hand. Feel free to comment directly on the forbes.com site, or you can reach me directly at has@harveysilverglate.com.

Lessons for all as the Probation Department saga ends

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 24 Jul 2014 20:52:10 GMT

Within the past few hours, the trial of former Probation Department head John J. O'Brien and his two deputies finally came to a conclusion. My research assistant Daniel Schneider and I have taken the liberty of writing a long-needed response, just published by Massachusetts Lawyers Weekly, to this malicious prosecution by the U.S. Attorney's Office in Boston.

If you have a subscription to Massachusetts Lawyers Weekly you can read (and comment on) our piece online. Otherwise, click here to view the column as a PDF in your browser.

As always, I appreciate your feedback on the topic at hand, and you can reach me or Daniel directly at harvey@harveysilverglate.com or daniel@harveysilverglate.com. If you’d like to write a Letter to the Editor in response to this column, you can email Henriette.Campagne@lawyersweekly.com.

DOJ's New Recording Policy: The Exceptions Swallow The Rule

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 02 Jun 2014 18:33:09 GMT

The Department of Justice recently distributed a memorandum of its new recording policy which ostensibly seeks to revise its long-standing practice of not electronically recording suspect or witness interviews. While many view this as a positive development, I have written a column explaining the shortcomings of this policy. I’m afraid little will change as the policy’s exceptions swallow the rule.

The article can be found on on the Forbes.com website.

As always, I’d appreciate your feedback on the topic at hand and encourage you to either post a comment directly below the column on Forbes.com or reach me directly at has@harveysilverglate.com.

Not Just Tsarnaev: Right To Council Dwindles

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 02 Jun 2014 15:40:36 GMT

On May 7^th, defense attorneys for Dzhokhar Tsarnaev filed a motion to suppress statements that FBI agents claim Tsarnaev made during an interrogation in the Intensive Care Unit of Beth Israel hospital. The pre-trial wrangling over whether this interview, which took place before Tsarnaev was read his Miranda rights, can be admitted into evidence raises important questions about the right to counsel and the privilege against self-incrimination. In my latest column for WGBH News, co-authored with my research assistant Juliana DeVries, we explain how the Supreme Court has in recent years allowed for the serious erosion of these key Constitutional protections.

You can read the column at the WGBH website.

Guest Appearance on Bill Frezza's 'Real Clear Radio Hour'

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 28 May 2014 13:47:01 GMT

Last week I sat down with Bill Frezza for a radio segment titled: "Runaway Government." Our discussion touched on a range of issues covered in Three Felonies A Day including the proliferation of vague statutes, over-zealous prosecutors and selective prosecutions.

Listen to the full conversation here: https://soundcloud.com/realclearradiohour/harvey-silverglate-podcast

"Trigger warnings: A dangerous idea on campus" by Renee Loth

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 22 May 2014 18:15:38 GMT

Renee Loth has written an insightful piece for The Boston Globe on the phenomenon of 'trigger warnings' currently spreading through higher education nationwide. Students and administrators alike have started demanding these disclaimers - which originated in the blogging world - be included on course syllabi and materials that could prove ‘offensive.’ As Loth puts it, “reasonable concern for students who may have suffered terrible traumas has morphed into a serious threat to intellectual freedom.” Tantamount to censorship, these trigger warnings are antithetical to a liberal arts education and have no place in the academy.

See the full article here: http://www.bostonglobe.com/opinion/2014/05/21/trigger-warnings-dangerous-idea-campus/ercxPOCUtzvMJTUl4Es32I/story.html

Unsettling result of Bulger trial: soon to hit big screen

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 14 Feb 2014 17:23:55 GMT

Last week I sent out my review of the latest Whitey Bulger documentary that I wrote for Forbes.com. This week I have published another piece in response to Berlinger’s film, this time in Massachusetts Lawyers Weekly, that considers the legal details of the Bulger trial in more depth. In this column I argue that, given the ambiguity in the case law governing the admissibility of Bulger’s claimed immunity agreement, Bulger should have been allowed to present this defense.

I realize that my position here will be seen as questionable by many, and as both wrong and wrong-headed by some. If you have any feedback, whether in agreement or disagreement, feel free to make a comment below the piece on the MLW website, or write me directly at has@harveysilverglate.com .

WHITEY: An Only-In-Boston Extravaganza Comes To The Big Screen

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 05 Feb 2014 19:09:06 GMT

Last week I attended a screening of Joe Berlinger's excellent documentary WHITEY: United States of America v. James J. Bulger, about the life, times, and trial of Boston's most notorious mobster. I've written a review for Forbes.com examining the immunity defense Whitey Bulger was never allowed to present in court, and the film's thoughtful treatment of the explosive subject.

As always, I’d appreciate your feedback on the topic at hand and encourage you to either post a comment directly below the column on Forbes.com or reach me directly at has@harveysilverglate.com.

Justice Goes After the GOP

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 31 Jan 2014 20:26:25 GMT

My views on the Holder Justice Department’s ill-considered recent displays of prosecutorial overzeal and worse are set forth in my latest piece for the Wall Street Journal.

As always, I’d appreciate your feedback on the topic at hand and encourage you to either post a comment directly below the column on the WSJ’s website, or reach me directly at has@harveysilverglate.com. If you’d like to write a Letter to the Editor in response to my column, you can email wsj.ltrs@wsj.com.

Mass. Governor's Council Settles the 'Armenian Genocide' Question...Sort Of

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 30 Jan 2014 19:54:30 GMT

You may be familiar with the kerfuffle that occurred at the Governor’s Council this past fall regarding Joseph S. Berman’s submission for a Superior Court Judgeship. Despite having a distinguished career as a respected litigator here in the Commonwealth, Mr. Berman’s submission was met with fierce resistance due to his affiliation with the Anti-Defamation League. The ADL describes the slaughter of Armenian’s by the Ottoman Empire at the end of WWI as “tantamount to genocide,” but the inclusion of that modifier continues to draw critique and contempt from the Armenian community. While it is known that Mr. Berman worked internally to soften the organization’s line on the issue, his affiliation with the ADL, it appears, is sufficient to impeach his candidacy for the bench. I’ve had my own experience learning just how narrow and politically-ordained the acceptable narrative of the Armenian genocide is in this state, when representing a group of students and teachers wishing to keep so-called “contra-genocide” educational materials in a resource guide provided by the state’s education commissioner. The materials had been removed after significant pressure was exerted by the local Armenian lobby, which appears to be at work again in Berman’s case.

For a more detailed report on this issue of the Armenian genocide debate becoming a third rail in Massachusetts, please see my column posted on WGBH here: http://blogs.wgbh.org/scrum/2014/1/30/governors-council-settles-armenian-genocide-question-sort/

The Buffer Zone Law Is Unconstitutional

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 16 Jan 2014 16:20:19 GMT

On January 15, 2014, the Supreme Court heard opening arguments in McCullen v. Coakley concerning the abortion clinic buffer zone law in Massachusetts. Passed in 2007, this statute establishes a 35-foot perimeter around the entrances of reproductive health facilities in order to limit what is perceived as the harassment by anti-abortion protesters of employees and patients entering clinics. While I support a woman’s right to choose to terminate her pregnancy, this law extends beyond what is necessary to protect women accessing these facilities (numerous other laws already protect against harassment and violence) and infringes on the First Amendment rights of anti-abortion protesters. This case represents yet another example of the “free speech for me but not for thee” attitude. A free society assures liberty, but not necessarily comfort, for its citizens.

For more insight on this issue please read my argument against the constitutionality of this law, presented alongside Massachusetts Attorney General Martha Coakley’s argument in support, on the WGBH/News page.

The column after the jump...

FIRE Video Interview

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 13 Dec 2013 18:57:30 GMT

The Foundation for Individual Rights in Education (FIRE), www.thefire.org , of which I am a co-founder and current Board of Directors chair, has produced a short (12 minutes long) video on my work in civil liberties in higher education. You may agree, or disagree, with my pessimistic assessment of the current state of the culture on our campuses, and with my optimistic assessment of our chances of restoring fairness, academic freedom, and rationality to these campuses. But in any event I think you’ll find this of interest...

You can find the video here: http://thefire.org/article/16547.html .

I hope you enjoy this piece and I encourage you to follow the important work FIRE is doing.

A Ruling on Terrorism That Throttles Civil Liberties

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 27 Nov 2013 18:06:16 GMT

On November 13^th the United States Court of Appeals in Boston affirmed the conviction of young Sudbury pharmacology student Tarek Mehanna. Mehanna was convicted on charges of rendering “material support” to terrorism – a dangerously broad and vague provision of the Patriot Act – though nothing Mehanna did came close to posing actual danger. In our op-ed for the Boston Globe, my paralegal Juliana DeVries and I argue that the tragic Mehanna verdict was made possible by the Supreme Court’s 2010 decision in Humanitarian Law Project v. Holder. The Humanitarian Law Project decision opened the door for federal prosecutors to criminalize a wide range of previously protected expressive activities, such as those in which Mehanna engaged.

You can read our op-ed at: http://www.bostonglobe.com/opinion/2013/11/27/ruling-terrorism-that-throttles-civil-liberties/LXmml8hiFCkugBmvmYEt5J/story.html

David Koch And The WGBH Controversy: Pledging Allegiance To The Flag Of The Day

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 15 Nov 2013 19:49:19 GMT

A contretemps currently taking place at Boston’s public broadcasting network WGBH is one of the more recent examples of pressure applied by interest groups to enforce ideological conformity. This latest such controversy involves billionaire industrialist and philanthropist David Koch, who sits on the WGBH board. Climate change activists are calling for his dismissal from that post. Without any evidence that Koch – who donates generously to the station – has attempted to influence, much less actually influenced and corrupted the network’s programming, these voices believe that he has no place serving as a board member on account of his minority-held views on the nature of climate shift. A loud and very public campaign, including picket lines outside of the network’s headquarters in Boston, is taking place.

In my recent piece for Forbes.com, I explain the stunted logic of this kind of campaign. Citing Justice Robert Jackson’s famous and moving 1943 Supreme Court opinion in the West Virginia Board of Education v. Barnette case, I remind those intolerant of Koch’s role in the public arena that unpopular opinions must be protected against the majority-held or “official” view of the day, particularly with regards to issues as important to all of us as the health of our planet. I invite you to read the full column here: http://www.forbes.com/sites/harveysilverglate/2013/11/15/david-koch-and-the-wgbh-controversy-pledging-allegiance-to-the-flag-of-the-day/.

No Sex Talk Allowed

rmalinowski@enesystems.com (Harvey Silverglate) — Thu, 16 May 2013 20:40:00 GMT

Those who enjoyed my most recent column for Minding the Campus about the Department of Justice / Department of Education letter on sexual harassment should read lifelong civil liberties advocate, writer and attorney Wendy Kaminer's brilliant May 16th piece for theAtlantic: "No Sex Talk Allowed."

Kaminer writes:
"Who will benefit from this system? Not educators who hope to foster critical thinking, not students seeking intellectual instead of bureaucratic experiences, not parents whose tuition dollars support unwieldy student life bureaucracies, and not those administrators who value academic freedom and the university's traditional educational mission. The Obama administration's bureaucratic dream is an educational nightmare. Who will benefit from this system? Equity consultants, for sure."
Read on at: http://www.theatlantic.com/sexes/archive/2013/05/no-sex-talk-allowed/275782/

FIRE President Greg Lukianoff for the WSJ: Feds to Students: You Can't Say That

rmalinowski@enesystems.com (Harvey Silverglate) — Thu, 16 May 2013 20:33:18 GMT

FIRE president and Unlearning Liberty: Campus Censorship and the End of American Debate author Greg Lukianoff writes for the Friday, May 17 opinion page of the Wall Street Journal about the May 9 letter declaring sexual harassment "unwelcome conduct of a sexual nature." What the Departments of Justice and Education have done, as explained by Lukianoff, constitutes a major assault on both free speech and Due Process on virtually every American college campus, public and private. I think it is unlikely that many, if any, colleges and universities will fight back rather than roll-over, hire more administrators, and do the federal government’s bidding. This means more work for those of us out here in civil society to protect what is left of academic freedom and fair disciplinary procedures on our beleaguered campuses.

You can access the piece at the following link:http://online.wsj.com/article/SB10001424127887323582904578485041304763554.html

The Feds Mandate Abolition of Free Speech on Campus

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 14 May 2013 20:22:57 GMT

Want to openly discuss gender discrepancies in the workplace? Want to listen to uncensored rap music? How about put on a comedy show? Not on our campuses! And what if you or a friend or family member has to pursue a defense to an unmeritorious charge of sexual harassment? Forget it!

On May 9^th, the Department of Justice and the Department of Education jointly issued a letter to the University of Montana, which the government called “a blueprint for colleges and universities throughout the country,” and which mandates changes to campus sexual harassment policies that will effectively make each of the above actions punishable offenses and will turn hearings into even worse kangaroo courts than exist today. This is a very serious development that everyone who thinks our universities play an important function in society will want to know about.

In my latest column for Minding the Campus, co-authored with my research assistant Juliana DeVries, we argue that the federal government’s unconstitutional mandate will obliterate free speech and fair process on campuses and make every student guilty of “harassment” several times a day. You can read the column on the Minding the Campus website.

An excerpt after the jump...

Civilization and Its Discontents: Burying the Boston Marathon Bomber

webmaster@harveysilverglate.com (Harvey Silverglate) — Tue, 14 May 2013 14:00:27 GMT

Americans conceive of our struggle against terrorism as an us-versus-them battle between our civilization and those who would seek to destroy it. But the recent controversy over the burial of Tamerlan Tsarnaev shows that our civilization can also fall victim to our own sometimes brutish impulses.

My latest column for Forbes.com, co-authored with my research assistant Zachary Bloom, addresses the ethical obligations that we as a civilized society must remember to obey in the wake of terrorist attacks. You can find it on my “Injustice Department” blog.

Beware the FBI when it is not recording

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 13 May 2013 21:32:40 GMT

Civil libertarians are used to sounding the alarm about pervasive government surveillance in the era of cellphones, drones and the Internet. But, as alleged Marathon bomber Dzhokhar Tsarnaev’s classmate Robel Phillipos is now discovering, an equal threat to liberty is the FBI policy forbidding recording of interviews.

My latest column, which ran in this Saturday’s (May 11^th) Boston Globe, explains the danger faced by witnesses and defendants who talk to the FBI. You can find it on the Globe’s website.

O’Brien indictment: the sausage factory and the democratic process

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 03 May 2013 17:04:54 GMT

Former Probation Department Commissioner John O’Brien was recently federally indicted for bribery and racketeering, after a series of Boston Globe stories and an official investigation showed that the probation department under O’Brien was giving preferential treatment to job candidates recommended by legislators and some judges in exchange for favorable treatment by the legislature in budgetary decisions. In my most recent column for Massachusetts Lawyers Weekly, coauthored with my friend and former law partner, Judge Nancy Gertner, we argue that, though the Probation Department’s hiring practices were not crimes under the present federal criminal code. It would be hard to find a government official who would not be subject to prosecution under such a large and nebulous definition of “corruption” and “fraudulent pretenses” as the U.S. Attorney describes in the O’Brien indictment.

The column after the jump...

Bulger’s immunity defense: what appearance of justice requires

webmaster@harveysilverglate.com (Harvey Silverglate) — Mon, 22 Apr 2013 16:35:06 GMT

Public confidence in the justice system suffered a major blow when the late-1990s trial of Stephen Flemmi revealed the federal government’s cozy relationship with Whitey Bulger and the Winter Hill gang. Federal Judge Denise Casper, the new judge recently assigned to Bulger’s trial, now has a golden opportunity to help restore that confidence. Casper’s upcoming first major ruling will be pivotal. She has to decide whether to reconsider a decision by her predecessor, Judge Richard Stearns, that Bulger and his lawyers will not be allowed to present Bulger’s asserted immunity defense to the jury unless they first convince the judge that the federal government actually granted Bulger effective immunity. In my most recent column for Mass Lawyers Weekly, I argue that Casper must take a second at this ruling.

The column after the jump...

KPMG and Scott London: Long-Forgotten Devil's Deal Means Feds Are Unlikely to Bring Corporate Charges

webmaster@harveysilverglate.com (Harvey Silverglate) — Thu, 18 Apr 2013 15:58:54 GMT

On March 20 former KPMG partner Scott London admitted to passing confidential inside information to his friend Bryan Shaw, who reportedly traded on that information, making over a million dollars. In my most recent “Injustice Department” column for Forbes.com, co-authored with my research assistants Juliana DeVries and Zachary Bloom, I explain how appalling violations of trust are nothing new to the KPMG leadership, considering their long-forgotten devil’s deal with the U.S. Department of Justice back in 2004, whereby the firm “cooperated” with the government and threw its employees and clients under the bus. A culture of betrayal is made almost inevitable by the prosecutorial tactics of the DOJ, which turn colleague against colleague and company against employee on the basis of not-always-truthful testimony.

You canfind the column here, on my "Injustice Department" blog.

Climbing the Ladder to Steven A. Cohen

webmaster@harveysilverglate.com (Harvey Silverglate) — Fri, 05 Apr 2013 19:02:59 GMT

I was struck recently by a page-one story in the Wall Street Journal about the latest arrest in the Department of Justice’s ongoing investigation of alleged insider trading at SAC Capital, a prominent hedge fund. So far six people have pleaded guilty or been convicted, and four have agreed to “cooperate.” It is the meaning of “cooperation” that is at the heart of my opinion piece.

You will find my column in today’s paper on the “Opinion” page, or on the Wall Street Journal’s website.

"Harvard Email Snooping: Overreaching Administrators at Work"

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 27 Mar 2013 17:12:23 GMT

As those of you who read my various writing know, our nation’s campuses are far from hubs of free inquiry. Today’s campus culture more accurately resembles a corporation, or, viewed a bit more cynically, a mini-police state. In my most recent piece for Minding the Campus, co-authored with my research assistants, Juliana DeVries and Zachary Bloom, we explain how the Harvard email search scandal is only the latest demonstration of administrators and lawyers’ power over faculty and staff. This latest invasion of academic prerogatives by the overlords should be a wake-up call to spur a rebellion against the unholy trends destroying liberal arts institutions all over the country.

You can read the piece at the following link:

http://www.mindingthecampus.com/originals/2013/03/the_harvard_email_snooping_cas.html

Boston Phoenix RIP

webmaster@harveysilverglate.com (Harvey Silverglate) — Wed, 27 Mar 2013 16:55:29 GMT

As many of you likely have heard, The Boston Phoenix (last year re-named simply The Phoenix) has ceased publication, a victim of the harsh economic times for print journalism. The remaining skeleton staff presiding over the sad burial rites has edited and published the final issue of the paper, available only in an on-line version that can be read at http://thephoenix.com.

I have written my final column that will be of particular interest to those of you who have been reading this rather remarkable “alternative weekly” for years. But it should also be of interest to those who have not had the pleasure of such a long-term reading experience. Here is my piece:

http://thephoenix.com/Boston/news/153300-freedom-watch-my-final-phoenix-column/