It is a pretty sweet car.

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Sending Your Bills to the Government Is Silly, Not Criminal

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Federal prosecutors in Colorado have found a way to use a serious tool against fraud to persecute some fringe political dissenters. The protesters, who deny the legitimacy of the U.S. government, take bills they owe, add notes to the effect of “Thank you for paying this debt,” and send them to government agencies like the U.S. Department of Agriculture. The government doesn’t pay the debts -- it throws the notices in the trash. Yet prosecutors are outrageously charging the protesters under the False Claims Act with the felony of submitting fraudulent financial claims on the government. This serious abuse of power violates the First Amendment -- and verges on prosecutorial misconduct.

The case of one such protester, Gunther Glaub, came to my attention through a former student involved in his defense. When I heard the facts, I admit I couldn’t quite believe it. Glaub and three other men are charged with felonies that could bring each 25 to 30 years in prison. The other defendants face bad check charges alongside their False Claims Act charges. But Glaub is charged only with five counts of fraudulently submitting bills to the government.

The beliefs Glaub holds are loosely connected to the “sovereign citizen” movement, members of which typically deny that the federal government has any legitimate authority. Glaub says he isn’t a sovereign citizen, but, according to a motion to dismiss the charges filed by his lawyers, he sincerely believes that “the federal government is liable for the debt of its citizens based on a misunderstanding of what occurred when the country went off the gold standard in 1933.” Glaub’s view is, needless to say, legally mistaken. The First Amendment protects it nevertheless.

Acting on his admittedly idiosyncratic notion, Glaub on five occasions sent his private bills to the USDA. My personal favorite is his wife’s student loan bill, for a bit more than $5,000, which was due to the Department of Education. Glaub sent the student loan bill to the director of finance at the USDA in Washington, politely thanking one part of the government for paying his debt to another.

Lest you think Glaub’s ideas were restricted to education or debts to the government, Glaub also sent the finance director the bill for a silver 2012 Chevrolet Camaro that cost a whopping $65,722.30. He attached the same polite note requesting payment.

There’s no evidence that anyone in the government thought the passed-on bills were anything other than the political expression of a fringe group. But the government charged Glaub anyway. John Walsh, the U.S. attorney for Colorado at the time, said the actions were “nothing more than good old lying, cheating and stealing for personal gain.”

The False Claims Act won’t bear the legal weight of the charges. It makes it a felony to present “any claim upon or against the United States … knowing such claim to be false, fictitious, or fraudulent.”

Glaub didn’t knowingly present a claim that he knew to be false -- because his letters weren’t the sort of bill that the government pays. What’s more, to the extent he believes the government really owes every citizen money, he wasn’t knowingly making a false submission. He doesn’t satisfy the terms of the statute.

To put it more bluntly, Glaub’s letters with “Thank you for paying” aren’t a clunky form of attempted fraud. They make sense only in the light of his unusual beliefs. The letters are therefore a form of constitutionally protected protest -- quirky to be sure, but protest all the same.

In response to a motion filed by Glaub’s lawyers, the government says that Glaub must go to trial to argue that he wasn’t submitting false claims. And it says that the False Claims Act doesn’t violate the Constitution. It’s true that the law prohibiting fraudulent claims isn’t generally unconstitutional in all cases -- it’s just unconstitutional as applied to a protester like Glaub.

The idea that Glaub should have to go to trial is more disturbing still. The risk of conviction is ever-present, especially for dissenters. And Glaub could face 25 years in prison, five for each of his alleged “offenses.” If the government is allowed to put Glaub in jeopardy of conviction based on these outrageous charges, then it can bring legally questionable charges against any political protester, effectively silencing free speech.

There’s a technical question of what grounds the judge should use to dismiss the case. I think the government has failed to allege facts that would amount to a violation of the statute under the legal requirements that it sets. But the judge could alternatively just direct an acquittal. In any case, judicial discretion should extend so far as to dismiss an indictment that has the inevitable effect of chilling free speech.

The truth is, it shouldn’t go so far as a judge. The U.S. attorney’s office should voluntarily dismiss the false claims charges against Glaub and anyone else who has submitted similar protest documents. Anything less amounts to using the criminal laws to go after free speech. And that’s an abuse of prosecutorial discretion that no free society should countenance.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net