05/05/2009 12:42 pm ET Updated May 25, 2011

Selective Prosecution

Two-time Oscar winning actor Kevin Spacey and director George Hickenlooper may have committed a felony last week by visiting convicted felon Jack Abramoff in prison. They are involved in a feature film--tentatively titled Casino Jack or Bagman--about the Abramoff lobbying scandal.

Although their felonious infraction may seem minor, the consequences are not.

According to federal Bureau of Prisons policy, "The inmate must have known the proposed visitor(s) prior to incarceration." The actual inmate-visitor application inquires: "Did you know this person prior to his/her current incarceration? If the answer is yes, indicate the length of time you have known this person and where the relationship developed."

Hence, one cannot visit a prisoner with whom one does not have a pre-existing relationship.*

The inmate-visitor application goes on to warn that "[t]he criminal penalty for making false statements is a fine of not more than $250,000 or imprisonment for not more than five years or both (See 18 U.S.C. § 1001.)"

In other words, making false statements is considered a serious felony.

I secretly interviewed Abramoff for over a year prior to his incarceration, so I was able to sign the application in good conscience and visit Abramoff 13 times in prison.

Spacey and Hickenlooper both claim that they met Abramoff separately about two decades ago in Los Angeles, when Abramoff was a Hollywood producer of films such as Red Scorpion, starring Dolph Lundgren. Their expedient assertions seem too coincidental and farfetched.

The easiest way to confirm whether Hickenlooper and Spacey had pre-existing relationships with Abramoff would be to put the ex-lobbyist under oath and ask him if it's true. One can safely infer that Abramoff has no desire to extend his already lengthy prison sentence. Hence, it is unlikely that he would dare risk committing perjury to shield two acquaintances by the names of Spacey and Hickenlooper, who are planning to portray Abramoff in a low-budget, $8-million Hollywood film, as a wicked and corrupt--but charming and likeable--sociopath.

Because of "selective prosecution," which is ubiquitous and rampant, Hickenlooper and Spacey will never be investigated for possibly making felonious false statements.

Prosecutors, even when they are aware of it, investigate and indict a fraction of those who commit a felony. Typically, they prosecute only those who are unpopular or highly visible and powerful. Jack Abramoff, whose crimes were essentially minor infractions, was an example of selective prosecution.

I conducted an exhaustive and independent investigation of the Washington lobbying scandal, in which I had unconditional and unfettered access to Abramoff and many documents never released to the public. I concluded that The Washington Post, which broke the story, and Sen. John McCain, the head of the Senate Indian Affairs Committee, were less than truthful in what they reported to the public about Abramoff.

I also concluded that Abramoff did not defraud his Indian clients. He did not bribe any appointed or elected officials. Since he gave away a huge proportion of his income to charity, he was not guilty of tax fraud. And he would have never been found guilty of wire fraud in Florida, since he knew nothing about the forged $21 million wire transfer upon which the wire fraud was based.

He did give away sports tickets and free meals to some lawmakers and appointed officials. He did partially subsidize several golf trips. In return, he was able to plead the interests of his clients to lawmakers and staff, which is what a lobbyist is hired to do. And he did receive some inconsequential favors, such as the placement of remarks in the obscure Congressional Records Extensions and the insertion of a rider to a moving piece of legislation that would have allowed an obscure El Paso Indian tribe to re-open its casino.

Probably every rider and earmark ever attached to federal legislation since the beginning of time has been at the behest of a lobbyist or a campaign contributor. Yet Abramoff is essentially in prison for six years for a felony hardly equivalent to making false statements on a prison visitor application.

Abramoff's felony--private honest-services fraud--is probably unconstitutional, because it is almost impossible to define.** Certainly, The Washington Post reporter--who appears to have knowingly written a misleading story about Abramoff on September 24, 2004, and Sen. John McCain--who deliberately deceived the American public by selectively releasing only 1% of Abramoff's e-mails--should be investigated for honest-services fraud.

But they never will be thanks to selective prosecution. And for that reason, Spacey and Hickenlooper, who appear to have openly committed a felony, will not find themselves rooming with Jack Abramoff, only visiting him.

There is something seriously wrong with the notion of "Equal Justice Under the Law," which is engraved under the pediment of the United States Supreme Court building.

*Although the Warden can make an exception to this rule--usually done when a prisoner has never had a visitor--it is doubtful that this would have granted permission to Spacey and Hickenlooper, because for the last couple of years the Warden has refused to allow Oscar-winning documentary filmmaker Alex Gibney to visit inmate Abramoff. Spacey and Hickenlooper wrote to Abramoff--his prison address is on the internet--and asked him if they could visit him. He agreed and placed them on his visitor list. They filled out the visitor application, signed it under pains and penalties of perjury, and mailed it to the prison. They then drove to the prison and talked to Abramoff. The Warden and the guard who monitors prisoner visitors had no idea who Hickenlooper and Spacey were.

** Abramoff pleaded guilty because prosecutors terrified him into pleading guilty, not because he actually thought he was guilty.

Gary S. Chafetz is the author of the recently published book, The Perfect Villain: John McCain and the Demonization of Lobbyist Jack Abramoff.