TACOMA, Washington – The government's prosecution of an Internet essayist accused of stalking federal agents raises unusual ethical questions because the alleged victim is also the chief investigator, experts say.
Jim Bell is charged with three counts of trying to intimidate Jeff Gordon, an agent in the Treasury Department's tax administration office. Gordon conducted repeated investigations of Bell, including the current one, and is the government's chief witness and courtroom technical expert.
Legal ethicists say that Gordon's deep involvement in a case in which he claims he feared for his life – and the fact that as a prosecution witness he was not sequestered – is uncommon during criminal trials.
"It sounds very odd to me," said Robert Drinan, a professor of law and ethics at Georgetown University. "It sounds awful."
"It doesn't quite add up.... It reminds me of a police officer suing his superiors, and getting himself assigned to the case," Drinan said.
(Editor's note: The reporter of this story was subpoenaed by the Justice Department to testify in the trial.)
The Treasury Department, the Justice Department and the U.S. Attorney's office refused to comment after repeated phone calls over a two-day period.
But Thomas Morgan, a professor of law at George Washington University, said he did not know of any ethical guidelines that would preclude Gordon from being the chief investigator in a case involving alleged threats against himself.
"It doesn't seem to me that it's inherently inappropriate," Morgan said. "It is simply using the courts to redress problems you're having. It sounds to me like the government is prosecuting the case.... The fact that they use him to do the investigating is fine."
Gordon has said in court documents that he is in "fear of death or serious bodily injury to himself and to his immediate family" from Bell's research. Bell took the witness stand on Friday and Monday to argue he had been conducting a lawful investigation into official corruption.
"The close involvement of a witness – indeed an alleged victim – in the prosecution team raises troubling issues of conflict of interest," says Barry Steinhardt, the associate director of the American Civil Liberties Union.
"The rules of legal ethics may not bar the prosecutors from using him, but elemental fairness would argue against it. It creates the impression that the prosecution is motivated by a personal grievance, rather than a search for the truth," Steinhardt said.
Gordon was involved in covert surveillance against Bell that included sending an undercover informant to a Libertarian Party meeting that Bell attended, following Bell in unmarked cars, and using a GPS bug hidden in Bell's car to track his movements at all times.
Bell first came to the attention of Gordon after the IRS learned he wrote an essay entitled "Assassination Politics," that advocated the slaughter of IRS agents.
The goverment argues that far from being only a passive essayist, Bell intended to terrify agents and last October posted a message to the cypherpunks list that said "Say Goodnight to Joshua." Joshua is the name of the son of Jeff Gordon, who happens to have the same name as the IRS agent.
Bell said on Monday that he posted the message to see if Gordon, who now monitors all messages sent to the cypherpunks mailing list, was watching. During testimony, Bell said he did not intend to harm Gordon or other Treasury agents, but wanted to investigate them to demonstrate that surveillance could be done in both directions.
The trial continues Tuesday with closing arguments.
Ryan Sager contributed to this report
