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Time's Fatuous and Egregious Coverage of Wall Street Prosecutor

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For most of its history of nearly 90 years, Time magazine has been a staple for the smug, clichéd, only-in-America, lumpen bourgeoisie; the Mencken-roasted, Lucian masses always ready to believe that if it's American it must be the best, and if it's happening in America, it must be good.

As the wheezing, purblind, quasi-survivor of the palsied medium of the weekly newsmagazine, Time's deathbed achievement was outlasting Newsweek, its ancient foe, which opted for accidental suicide by dispensing with news altogether and imagining that commercially adequate numbers of people would pay for a glossy magazine composed of the boring opinions of undistinguished commentators. They didn't, and Time plods on into the sunset, relatively unvexed.

Its February 13 locker room pep talk for America featured the U.S. attorney in Manhattan, Preet Bharara, who "collars the masters of the meltdown." This is vintage Time: The good sheriff goes forth to avenge the wronged populace against the swindlers. People whose indictments are highlighted are implicitly pre-judged and convicted, Time's tokenistic contribution to poisoning the jury pool; no cleaving nostalgically to a presumption of innocence for the prosecution cheerleaders at Time.

It was the old Time formula that I remembered from more than 50 years ago when I tired of and stopped reading its treacle that recorded every week the latest milestone in the inexorable march of mid-America toward its apotheosis of gelatinous, platitudinous, universal, and permanent embourgeoisement: a premonitory Pleasantville. Thus Mr. Bharara: a passionate seeker of justice, exemplar of the American Dream (as if ambitious people from modest circumstances didn't get on in any other country), and a Bruce Springsteen fan who is also a full-time crusader for justice.

This is the happy story of this happy week: America's largest city has a federal prosecutor who is finally flinging into prison those responsible for the economic debacle that came upon us in 2008. Time thus throws its flyweight avoir du poids on the side of the political class in the lengthy finger-pointing and buck-passing contest between the politicians and the financial community about whose responsibility the crisis was.

The executive branch, mainly the Clinton administration, directed Fanny Mae and Freddie Mac (Newt Gingrich, millionaire company historian) to pour hundreds of billions of what was ultimately tax-guaranteed money into non-commercial (i.e. worthless) mortgages, and the administration and the Congress, both parties, joined in the legislated requirement that lending banks consign 25 per cent of their mortgages to the waste basket in the same promotion of home ownership (for which read the big political pay-off from the building trades and residential real estate speculators).

Mark to market was imposed on merchant banks along with the ability to borrow up to 30 times their equity, ensuring that as soon as a slide started, as it did at Lehman Brothers, alert short sellers could drive the target under by selling shares they didn't own and cover them as new and ever cheaper stock was issued to preserve the required ratio, all the way down the drain.

The political leadership, including the regulators, created the context in which the disaster was bound to occur. This does not whitewash the stupidity, venality, and cowardice of much of the financial community. "When the music's playing, everyone has to dance," said Citigroup's Mr. Prince, as the world's largest financial institution descended into insolvency, consoled by the presence as vice chairman of former Treasury secretary St. Robert Rubin; and, "We're doing God's work," said Goldman Sachs chairman Lloyd Blankfein, after his firm peddled huge quantities of worthless real estate-backed securities out the front window to its clients with a false investment grade certification from the (unprosecuted) rating agencies which are now sitting in pseudo-Solomonic judgment on the credit ratings of the countries of the world, while short-selling them out the back door for its own house account -- were just two examples.

But in the blame game, the political class locked arms to scream from the Capitol and White House steps and from the skyscraper tops that "greed" was the problem, in the private sector of course. The tangible encouragements heaped by unsound countrywide on, inter alia, Chris Dodd of Dodd Frank, didn't count -- i.e. the politicians aren't counting. And Attorney General Holder and his acolytes in the federal prosecution service such as Time's current cover heart-throb, set out to end the debate by indicting the opposition debating team, with the enthusiastic collusion of most of America's bovine, law and order-deluded national media.

Thus the instant pantheonizee, Preet Bharara, who is in fact chasing after alleged inside traders, an activity which had nothing to do with the economic crisis, "collars the masters of the meltdown." He may be a capable and even, against the odds, a principled prosecutor, but this fatuous bit of Time-puffery does not incite optimism on that score.

If Time had had the privilege of a Damascene bolt of revelatory lightning (that it did not mistake for a UFO), it would have mentioned, as more serious magazines such as the New Yorker's Adam Gopnick and the Economist recently have, that the U.S. criminal justice system is a compost-heap of corruption and hypocrisy. All is governed by the plea bargain system, the wholesale extortion and subornation of perjury in exchange for immunity or a reduced sentence. The Fifth, Sixth, and Eighth Amendment guaranties of the grand jury as an assurance against capricious prosecution, of no seizure of property without due compensation, of due process, an impartial jury, access to counsel, prompt justice, and reasonable bail, have long since shrivelled into figments of the imagination of the sentimental, without that erosion being noticed by the national media or even the Supreme Court.

Prosecutors routinely use false affidavits and ex parte proceedings to freeze defendants' assets, depriving them of the means for a defence. Most public defenders are stooges of the prosecutors, most defense counsel are court corridor chums of the prosecutors who spend most of their time holding up their side of the charade about the citizens' day in court and settling cases on a plea.

Prosecutors win over 90 per cent of their cases; about 90 per cent don't go to trial because it is such an unaffordably costly stacked deck; sentences are exorbitant. Most prosecutors would be disbarred in any other serious jurisdiction. The United States has six to 12 times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, or the United Kingdom, and probably one million of America's 2.5 million prisoners are held in objectively barbarous conditions.

There are 48 million Americans with a "record" hobbled to some degree and often severely, for life, no matter how long ago or innocuous the offense. (There is no excuse for a DUI of 20 years ago preventing someone from entering Canada. In Canada, incidentally, only 65 per cent of prosecutions are successful, and only 40 per cent of those lead to a custodial sentence.)

The prosecutocracy, in which, ex officio, no one plays a more prominent role than the U.S. attorney in Manhattan, has hijacked the rights of the people of the land of the free with the enthusiastic -- if often witless -- complicity of much of the media, including Time, ever the quavering national town crier of "America's century."

Since I count it as an honour to be a vocal victim of this appalling system, and to write this piece from the federal prison where I have been sent, (for a few more weeks), despite the fact that all counts against me were abandoned, rejected by jurors, or vacated by a unanimous U.S. Supreme Court, (in another magic surprise of U.S. justice), and frequent readers would have seen comments similar to these from me here and elsewhere before, I must reassure you that I have not become senescently repetitive or descended into autocue.

I revisit this subject because Time awarded me a miscast cameo role in its lionization of Mr. Bharara, in the highest traditions of their infamous "fact-checking department." (Only at Time do facts need to be checked.) Thus was brought to my attention: "U.S. Attorneys in Houston took advantage of a relatively new law that made it a crime to deprive shareholders of honest services. Down went Enron CEO Jeff Skillings and Hollinger's Conrad Black on honest services fraud and other charges."

The statute in question goes back to an interpretation of 1941 -- which after being reversed by the Supreme Court in 1987, was re-legislated by Joe Biden on Christmas Eve, 1988 -- and had nothing to do with shareholders, but was designed to punish public officials who took bribes. When the Supreme Court struck down and rewrote the statute and vacated my few counts that survived the trial, and sent them back to the Circuit Court for the assessment of the gravity of its errors, one spurious mail fraud charge and an even more fatuous obstruction charge were self-servingly retrieved by the most notorious egomaniac and sociopath on the federal bench (who described himself as "callous" and "cruel" in a famous interview with a New Yorker writer 10 years ago). Black didn't go down; the malformed statute did. This was a side issue in Mr. Skillings' case.

Time gets to some of this inconvenience in its cover story, in its way: "History shows a mixed record for forward-leaning prosecutors," (a category that is defined to include America's most renowned public masturbator, Eliot Spitzer), "and Appeals courts rolled back some" (i.e. vacated all)" of the honest services fraud convictions related to...Conrad Black." This is vintage and unchanging Time, and consistent with the rest of the piece, as the "facts" are fitted like a figure-hugging body stocking onto the subject of the hagiography.

The fraudulent conviction of the late Senator Ted Stevens was referred to as "unsuccessful," which it was, after he lost reelection by a hair's breadth. "Prosecutorial witness-rigging" is mentioned, but not the failure of the court-appointed investigator to recommend prosecution of the prosecutors, because the trial judge did not admonish them to "obey the law." The transcript reveals that this was because the prosecutors said that they knew not to break the law without being admonished, as they broke the law.

It would have been somewhat persuasive if Time had waved the incense pot around Mr. Bharara while at least hinting at the moral bankruptcy of much of the American prosecutorial system in which he works. But that would be hard to square with the Disney World Fantasyland of America Time has been exuding and secreting since it sprang whole from the robustly wholesome imaginations of co-founders Henry Luce and Briton Hadden when the "American Century" was young, and "fact-checking" had not, "as it must to all men," become tedious (and therefore, to Time, superfluous).