Sidney Powell
Reviewed by Brandon Stump
What do the Enron prosecutions, the prosecution of the late and former United States Senator Ted Stevens, and the suicide of a young Department of Justice (DOJ) attorney have in common? Sidney Powell’s Licensed to Lie reveals the answer. Frustrating and at times tedious, overly long with too many intricate legal details, this story of government corruption is worthy reading for anyone who wants to believe in our criminal justice system and to understand how elusive “justice” actually is.
At its heart, Licensed to Lie is Powell’s semi-autobiographical tale of how she, a former attorney with the DOJ who trusted our government and its various systems, learned that justice was often blind – to the truth. Licensed to Lie is similar in plot to Actual Innocence by Barry Scheck, but instead of chronicling the misfortunes that often befuddle America’s poor and people of color, Licensed to Lie shows that no one is safe from overreaching prosecutions, not even the rich. Powell’s book is surprisingly apolitical, a welcome surprise in this polarized political climate. Instead of blaming the corruption on Republicans or Democrats, Powell makes great efforts to show that the problems in the DOJ have existed even as administrations have changed. In a subtle way, this objectivity provides Powell’s story with credibility: she is not a political hack, hoping to preach to her choir. Licensed to Lie comes across as one disillusioned attorney’s first-hand experience with government corruption, and how the shiny image of American freedom and justice was tarnished for her forever.
The story opens in September 2010. A young attorney for the DOJ, Nicholas Marsh, who was so despondent that he sought the finality that only a noose and a razor blade can give, is found by his wife. He is hanging from a power cord. The story cuts to six weeks earlier, August 2010, during a fateful flight with former Senator Ted Stevens in the Alaska skies. Marsh had been one of the prosecutors who worked on Stevens’s public corruption prosecution. What happens to Stevens’s plane is known to all who pay attention to current events.
A first chapter involving a suicide, the discussion of a corrupt prosecution, and a plane crash gives the expectation of great momentum. But the story, like a brand new Ford Mustang with a faulty engine, begins to sputter. What once seemed shiny, attractive, and fast, has been relegated to the side of the highway in need of AAA assistance. This is when the real meat of the story, the part involving Powell, begins. The book continues into a long, nearly 200 page, section devoted to the Enron debacle of the 1990s, and in particular, the prosecution of Jim Brown of Merrill Lynch before the plane crash and suicide are ultimately tied together.
Much of Licensed to Lie revolves around Powell’s representation of Brown, who worked for Merrill and entered into a “best efforts” agreement between Merrill and Enron. Enron “pushed and cajoled” Merrill to invest $7 million in cash to purchase an equity interest in a company that would benefit from three electrical power barges near Nigeria. Enron had sent the barges to the Nigerian coast. Merrill purchased the interest in the barges, and on December 23, 1999, a five-minute conversation took place between Merrill and Enron during which Enron told Merrill that it would use its best efforts to remarket Merrill’s interest in the barges. This was just what Merrill wanted as it did not want to hold its equity interest for long. All that ever happened was that Merrill and Enron entered into a legal “best efforts” agreement to remarket the barges. The DOJ, however, hot off of the Enron scandal, concocted a theory that the Merrill executives committed a crime by ensuring that Enron would buy back the barges which made Enron’s accounting incorrect. Thus, the government’s theory was that the transaction was a loan from Merrill and not a sale. In short: “Merrill executives were criminally responsible for ‘cooking Enron’s books.”
Admittedly, this is not sexy: barges, Enron, equity interests, and so on. But the story that unfolds is fascinating and deeply disturbing. What ensues from this banal transaction is a nightmare for Brown and the other executives at Merrill who are prosecuted based on no evidence, under laws that do not support their charges, and by prosecutors who care more about convictions than justice. Readers, especially non-lawyers, will be shocked to learn that prosecutors have discretion with regard to what evidence they must provide to defendants (which in Licensed to Lie ends up leading to wrongful convictions because defendants are neutered of any opportunity to actually prepare a defense). One of the most powerful questions raised by Powell comes at the end, when she ponders whether it makes sense for prosecutors, those responsible for building a case against a defendant, to have sole discretion to determine what evidence is relevant to a defendant, thus entitling the defendant to evidence that he or she can use for his or her defense.
Powell’s writing is not that different from the better legal briefs I have read throughout my legal career. At times, the writing is too conversational. For example, Powell, frustrated by the convictions against her clients by the Enron taskforce at the DOJ, explains less than poetically that “[t]his prosecution was crap.” It seems, too, that Powell tried to give her work literary quality by providing descriptions. Sometimes she describes the majesty of the United States Supreme Court, and other times she describes the respect she used to have for the legal profession, judges, and the Fifth Circuit in particular. These descriptions work. But at other times, Powell launches into gratuitous descriptions of people, including witnesses in cases and prosecuting attorneys. Unfortunately, these descriptions are rife with distracting gender biases, and in one instance, a tinge of homophobia. In a chapter involving the prosecution of Jim Brown, Powell describes an Enron employee who testified for the prosecution. The witness, Michael Kopper, is described as “a young, slender man, who was effeminate.” These descriptors of Kopper’s perceived weakness unnecessarily emasculate him and reflect more on the author than on the subject. They caused me to lose trust in Powell. The problem with gratuitous descriptors is that they can call into question an author’s credibility. Powell eventually reveals that Kopper was gay and had a partner. Objectively, the fact that Kopper had a partner is relevant to the story because a non-prosecution agreement was entered into by Kopper to allow his partner to avoid prosecution. But the fact that Kopper is gay, coupled with the description of him as effeminate and slender, makes Powell seem like a bully rather than a champion of justice, which throughout her legal representation of Brown she clearly is.
This, though, is not to say that Powell’s skills never shine. Powell’s descriptions of court proceedings, and even motions practice (yes, even motions practice) are enjoyable and sometimes thrilling to read. Particularly interesting is the way she layers her own thoughts and observations as counsel into the reality of what is actually taking place at trial. Her level-headed perspective, coupled with the illogical actions of the prosecutors and the trial judge, are fun to read. These elements of her story are especially interesting because they highlight the frustration of our judicial system in general, exemplifying how actions that make little sense somehow govern, even in our courts. Powell’s story is most powerful when she describes how Brown’s baseless prosecution destroys his and his family’s life. So many lawyers focus on the sufficiency of a proof and the legal details. But Powell, who seems to be earnestly heartbroken by her experiences representing Brown, treats her story, Jim’s story, Stevens’s story, and Marsh’s story, with gravitas. This may be the only justice in this sad tale.
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