This is not, by the way, Harvey Silverglate theorizing about what the deal was. The government actually pledged that if Michael would plead guilty, it would dismiss against Lowell. And just to show you the arrogance of the Department of Justice, they actually were willing to put this in writing. You would think that the federal judge would be so outraged that she would have immediately held contempt hearing for the prosecutors, right up to attorney generals. She would have called the attorney general in to explain how it is that the Department of Justice is being allowed to engage in such conduct. Instead, she went right along with it.
This was Judge Kimba Wood?
Who Bill Clinton tried to have named Attorney General.
Could this be construed as an example of an intellectual revolving door, where the judiciary and prosecutors are in great sympathy?
Oh yes, because she could have gone seamlessly from the bench to the Department of Justice. She and the federal prosecutor saw eye-to-eye on the Milken case, despite the fact that she should have subpoenaed the attorney general and ordered him to explain how any civilized Department of Justice can engage in such a prosecution.
Now, what makes this even worse is that even if Michael were guilty this would be horrendous conduct. Instead, Michael Milken was innocent of any federal crime. I examined, along with Dershowitz, every one of those counts to which he pleaded guilty. Dershowitz and I concluded that none of them were criminal. The fact that Michael made millions and millions of dollars out of each deal doesn't make it illegal. And yet, he was coerced into pleading guilty to six felonies that were not even crimes.
In one of those felonies, he was a co-defendant with one of his associates, who went to trial in federal court in New York to contest the charge that that deal was criminal. The judge at the trial acquitted him even before he had to put on any evidence. After the government had finished presenting evidence, the judge said, "I am entering a 'not guilty,' because even if you assume that everything the government said you did is true, it does not constitute a crime." Now, this is the same "crime" to which Michael pleaded guilty. And this didn't bother anybody. At the time, I didn't see any commentary that pointed and said, "Wait a minute, how could Michael Milken have gotten 10 years for something that another judge in the southern district of New York said was not even a crime?"
Why did Milken plead guilty then?
Because, two reasons. Number one, his brother Lowell was a co-defendant. Michael felt a little guilty, because Lowell worked with him, and in essence, it was the older brother who got the younger brother in trouble without meaning to, so he felt this great sense of responsibility for his younger brother.
Number two, the government made another threat, which is little-known to the public. It said that if Michael chose to go to trial in the case in New York, they were also going to indict him in other districts in the country where he had done business. They figured that the odds are that he would not only certainly get convicted somewhere, but he would spend the rest of his life fighting indictments all over the place. By the end, it would have taken a superman to fight these indictments, but it also would have taken somebody very callous with regard to the welfare of his kid brother.