There is a flip side to the due process problem of making everything a crime — the problem Glenn Reynolds has dubbed “Ham Sandwich Nation.” On the one hand, in Ham Sandwich Nation innocent citizens are subject to the whim of prosecutors and their masters (the Aaron Swartz case, cited in Glenn’s essay). On the other hand, when everyone is guilty of something, there is a lot of truly culpable behavior that will be allowed to escape the net for the wrong reasons (Glenn cites the case of David Gregory, though not necessarily for this proposition). Glenn concentrates on the problem of selective prosecution, but you can see the flip side of selective non-prosecution as well in the Gregory case and Glenn’s description of the underlying dynamics:
Prosecutors have limited resources, and there are political constraints on egregious overreaching. And, most of the time, prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice. Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria.
Which brings us to the case of Peter Gleick and his victims at the Heartland Institute. Gleick is a prominent climate scientist and environmental activist who labors on the “right” (i.e., left) side of the issues. The institute seeks the prosecution of Gleick based on what appear to be undisputed facts. Last week the institute released a 57-page slide presentation produced by its legal counsel at the the Jones Day law firm. Titled Criminal Referral of Dr. Peter H. Gleick Talking Points, the report was presented to the U.S. Attorney’s Office for the Northern District of Illinois.
The institute notes that no redactions were included in the presentation to the U.S. Attorney’s Office, with the exception of personal information on a donor’s check. More redactions are included in the referral document posted online to protect the privacy of those Gleick victimized. Please note that the Pacific Institute is not to be confused with the Pacific Research Institute, run by our friend Sally Pipes.
Heartland advises that several presentations based on information contained in the referral document were made to the staff of the U.S. Attorney’s Office, including David Glockner, at the time head of the criminal division, and Gary Shapiro, now acting U.S. Attorney, to no apparent effect. Gleick remains free as a bird. Last week Heartland Institute President Joseph Bast released the following statement:
Today marks the one-year anniversary of “Fakegate,” the day Pacific Institute President Peter Gleick sent to liberal activists and reporters documents he stole from The Heartland Institute and claimed to have obtained from a “Heartland insider” and later from an “anonymous source.” The documents included Heartland’s annual budget, fundraising plan, and other confidential documents. Media outlets in the U.S. and around the world reported on the “leak” of “secret plans” by an anonymous “insider” at the world’s most prominent think tank promoting skepticism about man-made global warming.
Gleick eventually confessed to being the “insider” and explained that he had stolen the identity of another person – a member of Heartland’s board of directors, it soon became known – in order to steal the confidential documents. There was no “leak.” Gleick also admitted to lying about the nature of one document he originally claimed had come from Heartland, a “strategy memo” that purported to describe Heartland’s plans to address climate change in the coming year. That document was quickly shown to be a fake, written to misrepresent and defame The Heartland Institute. Gleick denied he was the author of the fake memo.
The Heartland Institute, a nonprofit organization, retained legal counsel to formally request that the U.S. Attorney prosecute Peter Gleick for the federal crimes of wire fraud and aggravated identity theft. Today, one year after the crime was revealed and nearly one year after Gleick’s confession, the U.S. Attorney still has not filed charges against Gleick.
We urge everyone who has an interest in the global warming debate to review the “Criminal Referral of Dr. Peter H. Gleick Talking Points” presentation and decide for themselves whether Peter Gleick should be tried for his crimes. We ask the reporters and activists who were fooled by Gleick’s lies and who used the documents he stole and may have forged to attack The Heartland Institute, rather than come to our defense as the victim of a serious crime, to revisit their decisions and cover the story again, this time honestly. And we urge everyone to “look under the hood” at the real science behind the global warming scare and recognize that man-made global warming is not a crisis.
The Jones Day presentation is, as you might expect from a top-notch law firm, excellent. I would love Glenn Reynolds’s take on this and will add it in an update if Glenn weighs in.
STEVE adds: For more background on the whole episode, and why Gleick is the most likely author of the fake memo, you may wish to refer to my Weekly Standard article on it from a year ago.
UPDATE: Glenn Reynolds comments: “As with the prosecution of Aaron Swartz, the non-prosecution of Gleick is all about the government’s priorities.”