Michael Flynn Took the Fifth – So What Happens Now?

Yesterday former National Security Advisor Michael Flynn informed the Senate Intelligence Committee he will not comply with its subpoena. The subpoena sought any documents in Flynn’s possession relating to any communications or dealings with Russian officials. Through his attorneys, Flynn claimed that turning over the documents would violate his Fifth Amendment privilege against self-incrimination.

Now that Flynn has taken the Fifth, what happens next? Basically there are three alternatives: 1) the Senate challenges the claim of privilege; 2) the Senate grants Flynn immunity; or 3) the Senate decides to accept Flynn’s assertion of privilege and move on with its investigation.

But the Chair of the Senate Intelligence Committee has reportedly expressed surprise that Flynn could take the Fifth in connection with a subpoena for documents. So the first question is:

Can He Do That?

No one has a right simply to refuse to comply with a subpoena. Flynn can’t just say, “No, thanks” and refuse to turn over the documents. He has to have a valid legal excuse. In this case, he claims that excuse is his Fifth Amendment right not to incriminate himself.

Flynn had already asserted the Fifth in connection with any possible testimony before Congress. Weeks ago he indicated he would cooperate and testify only if he was granted immunity. So far Congress has not taken him up on that offer.

But when it comes to producing documents, rather than testifying, the rules are more complicated. The Fifth Amendment generally does not protect the contents of documents that were voluntarily created. Suppose I write in my diary, “I shot the Sheriff, but I did not shoot the deputy.” Then I lose the diary and someone turns it in to the authorities, or investigators seize the diary while executing a search warrant.

The contents of the diary certainly incriminate me. But I can’t claim a Fifth Amendment right not to have it used against me. The government did not compel me to write in my diary. The Fifth Amendment limits only government compulsion of testimony and so does not apply.

Act of Production Privilege

When it comes to producing documents, the Fifth Amendment protection is not based on the contents of those documents. It’s based on something called “act of production privilege.” Act of production privilege recognizes there may be testimonial aspects involved in producing documents that are subpoenaed.

If I turn over subpoenaed documents I am admitting the documents exist, that I have them, and that I believe they are responsive to the subpoena. Forcing me to respond to the subpoena may be akin to putting me on the stand and requiring me to make those admissions. In that situation I may be able to refuse to comply, because to comply would be to incriminate myself.

Act of production privilege does not automatically apply to any document subpoena. If the government can establish that the existence of the records is a foregone conclusion – in other words, anyone in my position would be expected to have the types of records called for – it can argue there is nothing testimonial about turning them over. In addition, sometimes the government can show with some specificity that it already knows the documents exist and that I have them. In that case, the act of producing them adds nothing to the government’s knowledge and would not be privileged.

But sometimes the government knows little or nothing about the nature of potential documents or whether they even exist and is just fishing to see what’s out there. In such a case, responding to the subpoena by identifying and turning over documents may be a testimonial act.

Congress is investigating Flynn over possible contacts with Russian officials and for allegedly lying about those contacts. Documents reflecting any such contacts are therefore potentially incriminating. His attorneys argue the Senate has failed to demonstrate that the existence of the subpoenaed documents is a foregone conclusion or that the Senate already knows the documents exist. Accordingly, they say, to turn over any such documents would be a privileged testimonial act.

So now that Flynn has taken the Fifth and refused to turn over the documents, where does the investigation go from here?

Michael Flynn has invoked the Fifth Amendment

Former Nat’l Security Advisor Michael Flynn

Option One: Fighting the Privilege Claim

Congress is not required to accept Flynn’s assertion of privilege at face value. If the Senate believes the privilege claim is unfounded, if can seek to enforce the subpoena. The Senate Committee leaders have reportedly said they will “vigorously pursue” the production of the documents. There are different ways the Senate could do this.

One alternative is for the Senate to file a civil lawsuit against Flynn seeking to enforce the subpoena. In the lawsuit Flynn would assert his Fifth Amendment claim as a defense, and a judge would rule on whether that claim was valid. If Flynn lost, he could appeal. If he lost again, he could ask the Supreme Court to hear the case. In the end, if the courts found there was no privilege, a judge would order Flynn to comply with the subpoena. If he still refused, he could be punished for contempt of court.

A second alternative is for the Senate to refer the matter to the U.S. Attorney for the District of Columbia and ask him to prosecute Flynn for criminal contempt of Congress. After receiving the referral, the U.S. Attorney would decide whether to pursue the contempt case. If the U.S. Attorney chose to indict Flynn for contempt of Congress, Flynn’s defense would be that the Fifth Amendment justified his refusal to comply. Once again, the courts would ultimately rule on that claim.

The U.S. Attorney could also decide that Flynn’s Fifth Amendment claim is valid and prosecution for contempt would not be appropriate. This happened recently in the case of Lois Lerner, a former IRS official. When she took the Fifth and refused to testify before a Congressional committee about claims the IRS had improperly targeted certain political groups, Congress referred the matter to the U.S. Attorney for a contempt prosecution. The U.S. Attorney, however, decided that Lerner’s privilege claim was justified and declined to bring a case. (You can find my post with more detail about contempt of Congress and the Lerner case here.)

A referral to the U.S. Attorney turns control of the contempt decision over to the Executive Branch. But a third option is for Congress to charge Flynn itself, using its own inherent contempt power. Although this inherent contempt power is well established, Congress hasn’t used it since the 1930s.

If the Senate chose to go this route there would be a hearing before Congress, similar to a trial. Flynn would appear, be represented by counsel, and would assert his Fifth Amendment privilege as his justification for not honoring the subpoena.

If Congress rejected Flynn’s privilege claim and found him in contempt, it could have Flynn jailed until he complied with the subpoena. If that happened, of course, Flynn’s lawyers would immediately go to court seeking to have his Fifth Amendment rights vindicated and to have Flynn released. So once again we would ultimately end up with a court ruling on whether the privilege claim is valid.

These three options for enforcing the subpoena have one thing in common: none of them are quick. With court hearings and appeals it could easily take many months to resolve the privilege claims. If the Senate’s primary goal is to get the information quickly, it could instead pursue option two: granting Flynn immunity.

Option Two: Immunizing Flynn

Rather than fighting the privilege claim, the Senate could choose to grant Flynn immunity for his production of the documents. The immunity order would provide that the testimonial aspects of Flynn turning over the documents could not be used against him. In other words, the government could not introduce into evidence the fact that Flynn had possessed the documents or that he turned them over in response to a subpoena.

This more limited type of immunity is called, reasonably enough, act of production immunity. As with immunity generally, Congress has the power to grant act of production immunity even if the Department of Justice objects. Two-thirds of the members of the Senate Intelligence Committee would need to approve.

If granted act of production immunity Flynn would no longer have a basis to withhold the documents. If he continued to refuse to comply with the subpoena he would face contempt charges and could be jailed until he complied.

Immunizing Flynn would mean Congress would get the documents quickly, but there is a risk. The grant of immunity could end up torpedoing a future criminal prosecution of Flynn if a court found that the prosecution relied on information gathered from the documents produced. This happened in a case involving Webb Hubbell, President Bill Clinton’s former Associate Attorney General. Hubbell’s prosecution resulted in the leading Supreme Court decision on act of production immunity.

The Supreme Court ruled on act of production immunity in Webb Hubbell's case.

Former Associate Attorney General Webster Hubbell

United States v. Hubbell

Hubbell was subpoenaed by the Whitewater Independent Counsel to produce a large number of documents to the grand jury. He asserted his Fifth Amendment act of production privilege and refused to produce the requested documents or even admit they existed. The prosecutors granted him immunity for the act of production, and Hubbell turned over more than 13,000 pages of responsive documents.

Based on information contained in the documents, the Independent Counsel later indicted Hubbell for tax crimes and fraud. But the Supreme Court threw out the indictment, saying it violated Hubbell’s Fifth Amendment rights.

The government did not seek to use evidence that Hubbell had possessed or produced the documents – that direct evidence would have violated the immunity order. But the contents of the documents had provided information that led to Hubbell’s indictment.

The Supreme Court held that by compelling Hubbell to assemble and produce documents responsive to the subpoena the government had made use of the “contents of his mind.” The government had only learned of the information in the documents as a result of that compulsion. Therefore using the contents of the documents to prosecute Hubbell was a prohibited “derivative use” of Hubbell’s immunized act of producing them.

The law on act of production immunity is not completely clear. And this case would be different from Hubbell’s in at least one important respect. In Hubbell the documents were subpoenaed by the same grand jury that later indicted him. In Flynn’s case Congress has issued the subpoena. That would make it easier for prosecutors to argue that their own investigation was not influenced by the documents. However, given how easily information spreads through the Internet (and how easily it leaks from Capitol Hill), it might be a challenge for prosecutors to prove their case was not tainted.

Congress could decide it is willing to take that risk in order to get the information quickly. They have done it before, most famously in the case of Oliver North during the Iran-Contra investigation, where Congress’s grant of immunity ultimately resulted in North’s criminal convictions being reversed. But by granting immunity Congress could end up begin accused of sabotaging any potential future criminal case against Flynn. For now, at least, the chair of the Senate Intelligence Committee has reportedly said that immunity is “off the table.”

Option Three: Just Move Along

The third option for Congress at this point is simply to accept Flynn’s assertion of privilege and move on. There is a great deal of investigating still to be done. Congress may be able to get much of the same information from other sources.

In addition to the investigations on Capitol Hill, the Special Counsel investigation will be moving forward. Criminal prosecutors may be able to build a case against Flynn without the subpoenaed documents. If Flynn were to end up facing charges, prosecutors could potentially negotiate a plea deal. As part of that deal Flynn could agree to turn over the documents and otherwise cooperate in the investigation of others.

Although there is public pressure to get to the bottom of what happened, the investigation is still in its infancy. Granting immunity could end up being a mistake if Flynn turns out to be one of the principal bad actors. Congress and the Special Counsel have plenty of time to pursue other avenues.

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Did President Trump Obstruct Justice? A Prosecution Analysis

Did President Trump obstruct justice? On May 9, 2017, the President fired FBI Director James Comey. This unexpected move immediately raised questions about the President’s motives. Critics charged that Trump was seeking to derail the FBI investigation into possible Russian ties to the Trump campaign.

Then, a week after Comey was sacked, substantial fuel was added to the obstruction fire. The New York Times reported that in a private meeting in February President Trump asked Comey to drop the investigation of former National Security Advisor Michael Flynn. Comey apparently prepared a memo memorializing this meeting. Comey wrote that Trump told him Flynn was a “good guy” who didn’t do anything wrong, and said , “I hope you can see your way clear to letting this go, to letting Flynn go.”

Additional news continues to trickle out. On May 19 the New York Times reported that in a meeting in the Oval Office with Russian officials the President told them, “I just fired the head of the F.B.I. He was crazy, a real nut job.” Trump also reportedly told the Russian officials, “I faced great pressure because of Russia. That’s taken off.”

Then on May 22, the Washington Post reported that Trump had asked the director of national intelligence and the director of the National Security Agency to publicly deny there was any evidence of collusion between Russian officials and the Trump campaign. Both refused to do so because they felt the request was inappropriate. Later in the same story, the Post reported that senior White House officials also had approached top intelligence officials to ask whether it was possible to ask Comey to shut down the FBI investigation.

“Obstruction of justice” is a term that gets tossed around fairly loosely. The op-ed pages and Twitter have been pronouncing Trump guilty for days. But the crime of obstruction of justice has specific requirements that can be difficult to prove. A federal prosecutor analyzing this as a criminal case would face some hurdles, although the case grows stronger with each new revelation. But in the end, political remedies — including potential impeachment — are more likely than criminal ones.

The Criminal Obstruction Statutes

Several different criminal statutes prohibit obstruction of justice. There are other options, but if I were considering this case I would focus on 18 U.S.C. § 1512(c)(2). This catch-all provision applies to anyone who “corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so.” The maximum penalty is twenty years in prison.

Obstruction is a crime independent of the merits of any underlying case. Even if an investigation doesn’t result in criminal charges, you can get in trouble for obstructing that investigation – just ask Scooter Libby or Martha Stewart. As the old saying goes, sometimes the cover-up is worse than the crime.

The statute applies to attempts to obstruct a proceeding even if they are unsuccessful. If the investigation into Russian ties continued unimpeded, that would not be a defense to any attempted obstruction.

What Is the Relevant Proceeding?

In any obstruction case, the first task is to identify the proceeding the defendant was allegedly trying to obstruct. There is no such thing as “obstruction in the air.” The government must prove the defendant had a particular proceeding in mind, even if that proceeding had not yet begun. (The prosecution’s failure to prove the link to a specific proceeding is what led the judge in the Bob and Maureen McDonnell case to throw out her obstruction conviction.)

Under § 1512 a proceeding may be a matter before any of the three branches of the federal government. A trial or other court proceeding, a Congressional investigation, or a proceeding before a federal agency all may qualify.

You generally can’t be charged with obstructing an FBI investigation itself, because an investigation is not a “proceeding.” A different obstruction statute, 18 U.S.C. § 1519, could apply if Trump destroyed documents or records (or Oval Office tape recordings?) to impede the FBI investigation. But firing Comey or urging him to drop the case would not fall within that prohibition.

Removing the FBI director might have some tangential effect on the ongoing Congressional investigations, which qualify as proceedings. But the most likely theory would be that Trump, by urging Comey to drop the investigation and then firing him when that didn’t happen, was attempting to impede the pending grand jury investigation into possible Russian connections to his campaign.

There were recent news reports that a federal grand jury has issued subpoenas for records related to Michael Flynn. There appears to be an active grand jury investigation, and there is probably little doubt the President is aware of it. A grand jury investigation is a “proceeding” for purposes of 1512.

This is a link made in many obstruction cases. The FBI investigates, but it can’t file charges and prosecute on its own. In a criminal case the FBI typically is working with federal prosecutors conducting a grand jury investigation. Often when people speak of obstructing an FBI investigation, what they really mean is obstructing the underlying grand jury proceeding in which the FBI is involved.

Prosecutors could charge that Trump sought to impede the grand jury investigation by persuading Comey to drop the case and, when that failed, by firing him. The government would bear the burden of proving Trump  had the grand jury investigation in mind when he took those actions.

Did President Trump obstruct justice by firing Comey?

Former FBI Director James Comey

Did President Trump Obstruct Justice?

As in so many white collar cases, the critical issue would be proving intent. Corrupt intent is the key to obstruction of justice. It means the defendant acted with the deliberate and dishonest purpose of interfering with the proceeding. In other words, wrongfully obstructing the proceeding is what he set out to do. It isn’t enough if the proceeding is affected as a collateral or unintended consequence of the defendant’s actions.

How would a prosecutor prove the President’s intent? One remarkable aspect of this case is the significance of the President’s own statements. During his recent interview with Lester Holt of NBC news, the President admitted he was thinking about the “Russia thing,” which he called a “made up story,” when he decided to fire Comey. This admission could get prosecutors over what is sometimes a significant hurdle: proving the defendant at least had the relevant proceeding in mind.

The day after firing Comey, the President reportedly told Russian officials that he had faced “pressure” over Russia and that firing Comey had removed that pressure. The defense would dispute exactly what the President meant by this, but at a minimum it is further evidence that Comey’s firing was linked in the President’s mind to the Russia investigation.

Building a Circumstantial Case

Prosecutors often prove corrupt intent by circumstantial evidence. In this case, there is no shortage of it. First, the timing of Comey’s firing is suspicious. Most of the misdeeds for which he allegedly was fired have been known for months. But the President chose to remove him only when the Russia investigation was reportedly heating up.

Reasons for the firing also seem suspect. The White House claims Comey was fired over his handling of  the Hillary Clinton email scandal. But as many have noted, the President previously praised Comey for those same actions, often while his crowds chanted, “Lock her up!” The claim the President fired Comey now for actions he took six months ago is perhaps implausible. But the notion that this President fired Comey because Comey was unfair to Hillary Clinton is laughable.

The White House also claimed the firing was necessary because Comey had lost the support and confidence of the rank and file members of the FBI. This was flatly contradicted by the now-acting director and Comey’s former chief deputy, Andrew McCabe, in testimony before the Senate Intelligence committee.

Then there is the shifting narrative about how the decision was made. The White House originally claimed the President acted based on a recommendation from newly-appointed Deputy Attorney General Rod Rosenstein. When Rosenstein apparently objected (and perhaps threatened to resign), the President began saying he had decided to fire Comey on his own, prior to any recommendation.

Conflicting, shifting, and apparently untrue explanations for the President’s actions could provide compelling circumstantial evidence of corrupt intent. Often such evidence suggests the truth is something more sinister that the defendant wants to conceal.

The news that Trump asked Comey to drop the investigation provides significant additional circumstantial evidence of corrupt intent. The narrative then becomes that Trump first urged Comey to back off, and when that failed, he fired him. Reports that Trump asked others to leave the meeting before he spoke to Comey further suggest he knew he was doing something improper.

This theory is bolstered by the reports that senior White House officials had asked intelligence officials about intervening with Comey to see if they could ask him to shut down the Russia investigation. If those reports could be substantiated they would provide further evidence that the purpose of firing Comey was not to remove an ineffective leader or help the FBI but to thwart the Russia investigation.

The Defense: Lack of Corrupt Intent

Despite all of the above, this would not be a slam-dunk prosecution. When I first wrote this post after Comey was fired, I thought a potential criminal case would be very challenging. The news that has come out since then — including the Holt interview, the Oval Office meeting with the Russians, and the White House inquiries about possibly asking Comey to shut down the investigation — has made the case considerably stronger.

Proving to a unanimous jury beyond a reasonable doubt that the President acted with corrupt intent would still be challenging. If the information in all the press reports could be verified and translated into admissible evidence, I think a prosecutor could build a pretty decent case. But the defense would have a lot to work with as well.

First there’s the fact that the President clearly has the right to fire the FBI director. Comey himself, in his letter to FBI personnel following his dismissal, noted his belief that the President could fire him at any time and for any reason. That’s not an ironclad defense, of course. If something you have the right to do is done for a corrupt purpose it can still be obstruction. But prosecutors could not raise an inference of corrupt intent based solely on the nature of the President’s actions.

In addition, as the President has already pointed out, many people, both Democrats and Republicans, believed there were good grounds to fire Comey based on his actions over the past year. This would help raise a reasonable doubt about corrupt intent.

The President’s defense also would claim that his actions were too remote from the Russia investigation to constitute obstruction. The Supreme Court has held that acts are not obstruction unless they would have the “natural and probable effect” of influencing the proceeding if successful. In an institution as large as the FBI, removing the director may be unlikely to derail any one investigation. Indeed, acting director McCabe assured Congress this was the case and that the investigation will proceed unimpeded.

The Significance of Trump’s Own Statements

Some commentators have claimed the President basically admitted to obstruction by telling Lester Holt the “Russia thing”  was on his mind when he fired Comey. This is an overreach. Saying the President was thinking in part about the Russia investigation is not at all the same as saying he acted with the corrupt intent to obstruct that investigation.

This is a fine distinction, but a critical one. The President could fire Comey because he was mad about Comey’s handling of the Russia investigation and still not intend to obstruct that investigation. If the President believed (probably correctly) the investigation would continue unimpeded without Comey, he would lack the requisite intent to obstruct. Even if he was just mad at Comey and didn’t think at all about the effect on the investigation, that too would mean he lacked corrupt intent.

Later in the same NBC interview Trump also said he wanted the investigation to be done properly. Trump could argue that because Comey had become ineffective as a leader, firing him actually made it more likely the investigation would be successful.

Trump’s statements to the Russian officials about relieving “pressure” by firing Comey are also open to more than one interpretation. Based on the White House statements following the story, it appears Trump would argue that Comey’s mishandling of the investigation was disrupting the President’s attempts to forge better diplomatic relations with the Russians. When he referred to relieving pressure, the defense would argue, the President was referring to this interference with his diplomacy, not to the criminal investigation.

Some of these alternative explanations may seem implausible. I can see eyes rolling from here. But remember the President would not need to prove he acted without corrupt intent. The burden of proof always rests with the government. The defense would only need to raise a reasonable doubt about the President’s intent.

Every prosecutor has had the experience of having what seemed like a stone cold admission by a defendant be completely undermined by a plausible alternative explanation. I’m not trying to bend over backwards to provide excuses for the President’s statements. I’m simply acknowledging the difficulties that prosecutors can face when trying to prove guilt based on statements and circumstances that may be open to different interpretations.

Trump’s Alleged Request to Drop the Investigation

The new reports that President Trump asked Comey to drop the Flynn investigation provide significant additional evidence of possible obstruction of justice. But there are still some unresolved questions. First, the White House has denied Comey’s claims. Unless the rumored Oval Office tapes show up, the details of the meeting would be contested. Comey’s contemporaneous notes would carry significant weight, but disputes about the details and precisely what Trump said and how he said it could be important.

The President is the head of the Executive Branch and was Comey’s boss. How does that affect the question of corrupt intent? On some level the President does have the right to tell the FBI director what to do, just as he has the right to fire him.

There are long-standing norms and traditions about Justice Department independence and the White House not interfering in DOJ investigations. Trump’s alleged conversation with Comey seems to have trampled all over those norms. But whether breaching those norms amounts to a crime is a different question.

Trump’s meeting with Comey is the incident that so far sounds the most like true obstruction. But it may depend on further information about Trump’s own involvement in any underlying misconduct. If it turns out Trump wanted the Flynn case dropped because he feared it would lead to him, that sounds like corrupt intent. But if Trump was not implicated and was simply genuinely concerned that his friend was being treated unfairly, that could suggest the conversation was perhaps improper and unwise but not criminal.

In response to reports about the meeting with Comey, the White House responded by saying essentially “this is just the way the President talks.” In other words, it was an offhand remark expressing his concern about Flynn, not a calculated effort to influence Comey. This is a version of a defense of lack of corrupt intent, and it may be perfectly plausible. The President simply may not have appreciated the impact such an offhand statement could have when it comes from the leader of the free world and the FBI director’s boss.

In situations such as the Comey meeting a great deal also depends on things like nuance, tone, and body language. Was the statement made in a menacing way or in an offhand way? How did Comey interpret it? Information like that does not come across in a memo to the file and would depend on Comey’s testimony about the meeting.

There’s Obstruction, and then There’s Obstruction

In a criminal investigation of possible obstruction a grand jury could subpoena additional witnesses and documents. Perhaps prosecutors could develop stronger evidence of corrupt intent. The case would depend not on any one incident in isolation but on the pattern of the President’s actions. The circumstantial evidence is mounting, but a lot would need to be done to shore up that evidence. Prosecutors would need to establish that some of the things reported in the press actually took place and could be proven at trial.

The reality is that a criminal prosecution of President Trump is unlikely. Although it’s never been officially settled, most authorities – including the DOJ — believe the Constitution prohibits the prosecution of a sitting President. The scene where Trump is handcuffed and perp-walked out of the Oval Office is not going to happen.

But I think when most people accuse Trump of “obstructing justice,” they are not focused on the elements of a specific criminal statute. Through a series of actions (including the events discussed above, a request that Comey pledge his loyalty, asking Comey whether he was under investigation, and his subsequent Tweet about Comey that many interpreted as a threat) Trump appears to have violated fundamental constitutional and political norms concerning the rule of law and limitations on executive power. Trump’s actions may obstruct justice in this broader, structural sense even if not in a strictly legal one.

As with violations of the Constitution’s Emoluments Clause, the primary remedy for this obstruction would be political. Political remedies include elections, where the voters have a chance to register their disapproval. They also include impeachment, which is available for “high crimes and misdemeanors.” This is generally interpreted to mean misconduct related to public office, not necessarily precise criminal violations. Charges of obstruction of justice were central to the articles of impeachment of both Richard Nixon and Bill Clinton.

Impeachment is primarily a political proceeding rather than a legal one. Congress does not need to establish proof beyond a reasonable doubt of all elements of a crime the way a prosecutor does. Disregard of basic constitutional and political norms could fall short of a criminal offense and still justify impeachment. It’s up to the Members of Congress to decide whether misconduct rises to a level that would justify removing the President. For now, a great deal of additional investigation is needed before Congress could make those decisions.

As was true with alleged perjury by Attorney General Jeff Sessions, critics have been quick to accuse the President of a crime. But as I’m always telling my students, there is a lot of sleazy, unethical, and improper conduct that isn’t criminal. Trump’s potential interference with an ongoing investigation raises grave concerns. But the likely remedy lies with the political process, not a criminal prosecution.

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Charging Foreign Officials Who Take Bribes with Conspiracy to Violate the FCPA

The Foreign Corrupt Practices Act prohibits U.S. persons and companies from paying bribes to foreign officials to obtain or retain business. The statute applies only to those who pay the bribes, not to foreign officials who receive them. But a recent Supreme Court decision may revive a long-dormant legal theory: charging foreign officials with conspiracy to violate the FCPA.

Congress passed the FCPA in 1977 to combat U.S. companies participating in foreign corruption. In recent years FCPA enforcement has become a major priority for the Department of Justice and the SEC. FCPA cases have resulted in some of the largest criminal and civil fines in history. And although private citizen Donald Trump criticized the law in the past, Attorney General Sessions recently affirmed the Trump administration remains committed to its enforcement.

The FCPA is an unusual corruption statute in at least one respect. Bribery laws generally apply to both sides of a corrupt transaction, prohibiting the receipt of bribes by a public official as well as the payment of those bribes. The FCPA, by contrast, applies only to the bribe payer. Foreign officials who receive bribes may be subject to prosecution in their own country, but the language of the FCPA does not prohibit their actions.

Forty years after the FCPA’s passage, the economy is more global and interconnected than ever. DOJ is much more aggressive about asserting criminal jurisdiction over events that take place primarily in other countries. There are cases where DOJ may want to charge the foreign official accepting FCPA bribes. This may be particularly true when the official has extensive ties to and activities within the United States, or when prosecution in the official’s own country seems unlikely.

Because the FCPA does not apply to the bribe recipients, DOJ must look to other theories to hold them accountable. For example, in some recent cases DOJ has charged foreign officials with money laundering of funds received as part of an FCPA scheme.

But DOJ may have a more direct option: charging foreign officials who receive bribes with conspiracy to violate the FCPA. Conventional wisdom has been that such conspiracy charges are improper. This is based in large part on a single 1991 Court of Appeals case, United States v. Castle. But a recent Supreme Court decision casts doubt on Castle and may breathe new life into the conspiracy theory.

Bribery usually punishes both sides of the corrupt transaction

The Conspiracy Precedent: United States v. Castle

There was a time when DOJ believed it could charge foreign officials with conspiracy to violate the FCPA. In Castle the government used that theory to prosecute four individuals – two U.S. citizens and two Canadian officials. The Americans had allegedly paid the Canadians a $50,000 bribe to secure a contract to provide buses to the Saskatchewan government.

The conduct of the Americans plainly fell within the statute. But the Canadian defendants claimed they could not be charged with conspiracy to violate the FCPA. They argued the conspiracy charge was an improper attempt to circumvent Congress’s decision not to criminalize the foreign officials’s conduct.

The U.S. Court of Appeals for the Fifth Circuit agreed. The court said Congress knew any FCPA bribery transaction would necessarily involve a foreign official. But Congress chose not to criminalize the receipt of the bribe. Prosecuting foreign officials for conspiracy, the court held, would amount to an improper end run around this Congressional policy decision.

The Mann Act and Gebardi v. United States

The Castle court relied primarily on a 1932 Supreme Court case, Gebardi v. United States. Gebardi involved a prosecution under the Mann Act, which prohibited the transportation of women across state lines for “immoral purposes.” The Mann Act punished those doing the transporting but did not criminalize the actions of the woman being transported.

In Gebardi a woman agreed to cross state lines with her lover to have sex. When they were charged with conspiracy to violate the Mann Act, she argued the charge was improper. She noted that Congress deliberately chose not to criminalize her conduct in the Mann Act itself. To allow a conspiracy charge, she claimed, would subvert this Congressional decision. The Supreme Court agreed and dismissed the conspiracy case.

The Castle court held that the reasoning of Gebardi squarely applied to the FCPA. Failing to criminalize the receipt of bribes by foreign officials, the court said, represented “an affirmative legislative policy to leave unpunished a well-defined group of persons who were necessary parties to the acts constituting a violation of the substantive law.” Given that legislative decision, it was improper for prosecutors to use conspiracy to charge the foreign officials that the FCPA left unpunished.

Baltimore police were charged with extortion in Ocasio

Conspiracy and Ocasio v. United States

Since 1991 Castle has been widely cited for the proposition that it’s improper to charge foreign officials with conspiracy to violate the FCPA. But the Supreme Court’s decision last term in Ocasio v. United States suggests the high court would not agree.

In Ocasio the defendant was a Baltimore police officer. He, some fellow officers, and the owners of an auto garage took part in a scheme in which the garage owners paid the officers to refer car accident victims to the garage for repairs.

Officer Ocasio and the garage owners were charged with conspiracy to violate the Hobbs Act. That act prohibits extortion “under color of official right” by a public official. This is a common federal corruption charge, particularly in cases involving state or local officials.

In Evans v. United States the Supreme Court held that extortion under color of official right is basically equivalent to the receipt of a bribe. But the Hobbs Act applies only to the public official, not to the person who pays. So as interpreted by Evans the Hobbs Act, like the FCPA, is an odd bribery statute: it prohibits only one side of a two-sided corrupt transaction.

In Officer Ocasio’s case, that meant prosecutors couldn’t charge the garage owners with violating the Hobbs Act directly. So they charged the garage owners and the officers with conspiracy to violate the Hobbs Act. The government’s theory was that although the garage owners could not violate the Hobbs Act, they were still capable of conspiring to help the officers violate it. In effect, the garage owners were charged with conspiring to help the police officers extort money from the garage owners themselves.

Ocasio argued the conspiracy charge was improper. Part of his argument was similar to that made by the defendant in Gebardi. Although every Hobbs Act extortion case necessarily involves at least two parties, Congress expressly chose not to punish the person who pays the public official. Prosecuting the payer for conspiracy to violate the Hobbs Act, Ocasio argued, would undermine this Congressional decision.

Supreme Court precedent supports charging foreign officials with conspiracy to violate the FCPA

The Supreme Court on the Nature of Conspiracy

The Supreme Court disagreed with Officer Ocasio. The Court relied on basic principles of conspiracy law. It noted that conspiracy has always been a separate offense from the underlying crime. In a conspiracy charge, the crime is the agreement itself – the joint undertaking to engage in criminal activity.

Conspiracy does not require that the co-conspirators successfully commit the crime that is the object of the conspiracy. It does not require that each co-conspirator agree to commit or facilitate each and every element of the underlying crime. In fact, a conspirator may be convicted even if he was legally incapable of committing the underlying offense. Conspirators need only agree to help some member of the conspiracy commit the crime.

In Ocasio’s case, the garage owners conspired with the police officers to help the officers violate the Hobbs Act. The Court held this conspiracy theory was sound even though the garage owners, who were not public officials, would be legally incapable of committing extortion under color of official right: “It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense.”

The Mann Act Precedents

The Ocasio Court also discussed Gebardi, as well as an even earlier Mann Act case, United States v. Holte (1915). In Holte the Court rejected the claim that it was impossible for the woman transported across state lines to be guilty of conspiracy to violate the Mann Act. The Court gave an example of a prostitute who buys the train tickets, arranges for the travel, and then crosses state lines with a companion. In such a case, the Court said, there was no reason the woman could not be charged with conspiracy even though the terms of the Mann Act did not cover her conduct.

The Court in Ocasio concluded Holte and Gebardi mean that merely participating in a two-sided transaction will not always be enough to charge the person not covered by the statute  with conspiracy. However, there could be cases where the active participation of the other party would rise to the level where a conspiracy charge would be warranted. Gebardi, the Court held, rejected the conspiracy charge not because it was inherently improper but simply because there was no evidence that the woman in that case had actually joined the conspiracy.

The Court concluded: “Holte and Gebardi make perfectly clear that a person may be convicted of conspiring to commit a substantive offense that he or she cannot personally commit. They also show that when that person’s consent or acquiescence is inherent in the underlying substantive offense, something more than bare consent or acquiescence may be needed to prove that the person was a conspirator.”

Charging Foreign Officials with Conspiracy to Violate the FCPA

Ocasio suggests the current Supreme Court would not agree with the Castle court’s reading of Gebardi. Like the FCPA, the Hobbs Act expressly fails to criminalize the acts of one of the two necessary parties in a criminal transaction. The court in Castle held that this Congressional judgment meant a conspiracy charge would always be improper. But the Supreme Court in Ocasio rejected a similar claim.

Castle essentially concluded that Congress’s failure to include foreign officials in the FCPA immunizes those officials from any FCPA-related charge, even under separate statutes. The current Supreme Court is unlikely to be sympathetic to that argument. If Congress wants to pass a statute prohibiting any charges of any kind against foreign officials who accept bribes, it is free to do so. But the Court is unlikely to infer such a broad policy decision from the silence in the FCPA. It is much more likely to find, as it did with the Hobbs Act, that nothing in the FCPA alters the basic law of conspiracy.

This suggests DOJ could properly charge a foreign official who receives bribes with conspiracy to violate the FCPA. The theory would be that the foreign official conspired to help U.S. persons violate the FCPA by bribing that official. Just as the garage owners in Ocasio conspired to help others extort money from the owners, foreign officials could conspire to help others pay bribes to the foreign officials.

This charge would be most appropriate where the foreign official was aggressively encouraging the bribes. As the Court noted in Ocasio, something more than mere passive participation likely would be required to find the officials guilty of a conspiracy. But if they were actively engaged in the scheme, a conspiracy charge may be warranted.

In a case where the foreign official is aggressively demanding bribes, punishment of the official may be particularly justified. The bribe payers arguably are being “shaken down.” They may feel they have little choice but to pay. Charging only the bribe payers in such a case is akin to charging only the victims of extortion in a Hobbs Act case – it may let the most culpable party off the hook.

Of course, cases where DOJ is interested in prosecuting the foreign official may be relatively rare. Where the official is more of a passive recipient, conspiracy charges may not be warranted. In many cases diplomatic, jurisdictional, evidentiary, or other concerns will counsel against filing charges.

But in appropriate cases, DOJ should consider charging foreign officials who accept bribes with conspiracy to violate the FCPA. Ocasio suggests the Department’s legal position more than twenty-five years ago in Castle was correct: conspiracy is a separate crime and there is no barrier to prosecution.

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Why Bob McDonnell Won’t Save Bob Menendez

U.S. Senator Robert Menendez is facing trial this fall on corruption charges. His lawyers will claim the Supreme Court’s recent decision in the Bob McDonnell case means the charges against Menendez cannot stand. But the effect of the McDonnell case on the Bob Menendez trial is likely to be pretty limited.

New Jersey Democrat Menendez and his co-defendant Dr. Salomon Melgen were indicted in April 2015. (You can find my detailed analysis of the indictment here.) The case has been on hold for two years while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trial court and the U.S. Court of Appeals for the Third Circuit rejected those arguments. The Supreme Court recently declined to hear his appeal, finally clearing the way for the case to go to trial.

But while Menendez was pursing his Speech or Debate appeals, the U.S. Supreme Court decided McDonnell v. United States. The Court reversed the convictions of the former governor of Virginia, holding that McDonnell did not perform “official acts” as defined by federal bribery law.

Senator Menendez and his lawyers are hoping that McDonnell will breathe new life into his own defense. They will argue that Senator Menendez, like Governor McDonnell, did not agree to perform any official acts. But for Menendez that’s going to be an uphill battle.

Senator Robert Menendez

Senator Robert Menendez

The Charges Against Senator Menendez

The Menendez/Melgen indictment describes a long-term bribery scheme. It charges that Melgen repeatedly provided Menendez with valuable gifts including multiple trips on his private jet, repeated stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to campaigns and legal defense funds. In exchange, Menendez allegedly interceded on Melgen’s behalf in several different government disputes. The government also alleges Menendez took steps to conceal these facts, including failing to report any of Melgen’s gifts.

The actions Menendez allegedly took on Melgen’s behalf fall into three general categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel to help three different foreign girlfriends of Melgen obtain visas to come to the United States.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the Dominican Republic to provide x-ray screening of cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes. Menendez and his staff contacted different State Department officials, urging them to pressure the Dominican government to implement the contract. At one point Menendez met with an Assistant Secretary of State and said he was unsatisfied with the way State was handling the matter. Menendez allegedly threatened to hold a hearing and call the Assistant Secretary to testify.

Medicare dispute:  Melgen, a prominent Florida ophthalmologist, was embroiled for several years in a multi-million dollar dispute over his Medicare billings. He was allegedly using an eye medication designed for a single patient to treat two or three people. He would then bill Medicare as if he had purchased a separate vial for each patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling.

Menendez and his staff worked for several years to help Melgen resolve this dispute. Menendez personally met with the Secretary of Health and Human Services and with the acting director of the Center for Medicare and Medicaid Services to advocate on Melgen’s behalf.

(As I write this, Dr. Melgen is currently on trial in Florida on a separate indictment charging him with Medicare fraud based in part on this scheme. Update: On April 28, 2017, Melgen was convicted on dozens of counts of fraud in the Florida case.)

What will be the effect of the McDonnell case on the Bob Menendez trial?

Former Virginia Governor Bob McDonnell

The McDonnell Decision

A jury convicted former Virginia Governor Robert McDonnell and his wife Maureen of multiple counts of corruption in September 2014. The McDonnells accepted more than $170,000 in gifts and undocumented “loans” from businessman Jonnie Williams. In return, prosecutors charged, the McDonnells agreed to promote Anatabloc, a dietary supplement made by Williams’s company, within the Virginia government.

A unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld the convictions. But in June 2016 the U.S. Supreme Court unanimously reversed, holding that the steps taken by McDonnell on Williams’s behalf did not constitute “official acts” under federal bribery law. (You can find my more detailed analysis and critique of the Court’s opinion here.)

The Court based its decision on the language of the federal bribery statute, 18 U.S.C. § 201. That statute defines bribery, in part, as a public official accepting something of value in exchange for agreeing to be influenced in the performance of any “official act.” It further defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . . ”

The evidence had shown that McDonnell made phone calls on Williams’s behalf, arranged meetings for Williams with other Virginia government officials, and hosted a product launch event for Anatabloc at the Governor’s mansion. The Court held that these actions, standing alone, did not amount to “official acts” and could not support a bribery conviction.

The Court broke its analysis down into two steps, focusing on the precise language of the official act definition. First, one must identify the relevant “question, matter, cause, suit, proceeding or controversy” to which the alleged bribe relates. This language, the Court held, connotes a “formal exercise of government power, such as a lawsuit, hearing, or administrative determination.” It suggests something that is “relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and checked off as complete.”

Second, the Court said, the public official must agree to take a “decision or action” “on” the relevant matter, suit or controversy. This requires that the official take some steps to address or decide the matter, or to influence or advise others to do so. In particular, the requirement that the decision or action be “on” the matter – and not merely “about” or “related to” the matter – suggests the official is working to resolve it somehow.

The Court concluded that McDonnell’s actions did not amount to official acts under this analysis. There were several Anatabloc-related issues that could constitute a “question, matter, cause, suit, proceeding, or controversy.” But simply making phone calls or arranging meetings did not amount to “decisions or actions on” any of those questions. McDonnell introduced Williams to various officials and extended other political courtesies related to Anatabloc. But McDonnell did not himself take steps to resolve any of the matters or pressure others to do so. Accordingly, the Court concluded, a bribery conviction based on McDonnell’s actions could not stand.

Did Senator Menendez Perform “Official Acts?”

Even before McDonnell was decided, Senator Menendez had filed motions arguing he had not performed any official acts. The trial court denied those motions back in 2015. Now, in the wake of McDonnell, Menendez will undoubtedly renew those arguments.

If we follow the Supreme Court’s two-step approach from McDonnell, it’s pretty easy to define the relevant “question, matter, cause, suit, proceeding or controversy” for each aspect of Menendez’s case:

1) Should the State Department grant a visa to allow this individual to enter the United States?

2) Should the U.S. government work to persuade the Dominican government to implement the port security contract?

3) Should HHS modify its rules concerning the dosing of a particular eye medication? Or, more specifically, should the Department pursue its claims against Dr. Melgen about alleged overdosing?

Each of these is a circumscribed issue, a question that could be put on an agenda and checked off as resolved. They are the type of specific administrative or policy matters that McDonnell requires.

Menendez will argue that he, like McDonnell, did not take any “decisions or actions on” the defined matters. But Menendez’s actions were much more substantial than McDonnell’s. Menendez did not simply arrange meetings for Melgen or introduce him to other officials. The Senator himself attended various meetings and otherwise advocated for Melgen’s interests. Unlike McDonnell, Menendez was actively engaged in trying to influence the outcome of the matters in question.

An official act must also involve a matter that is “pending, or which may by law be brought before any public official . . . . ” Menendez will also argue that the identified matters were never pending before him and that he did not have the power to decide them. As a result, he will claim, his advocacy on these matters cannot amount to official acts by him.

But the Supreme Court in McDonnell squarely addressed this question. The Court held that a “decision or action” may include influencing another public official who has the power to decide: “decision or action may include using his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.’”

In other words, the official act does not have to be one the defendant himself has the power to resolve. It is sufficient if the defendant attempts to pressure, persuade, or advise another public official to perform an official act.

In the Menendez case the relevant matters were pending before various Executive Branch officials. Their resolution of those questions would constitute official acts. The indictment alleges that Senator Menendez attempted to pressure or persuade those officials to resolve the matters in Melgen’s favor. McDonnell makes it clear that such efforts can be official acts by Menendez,.

Heads I Win, Tails You Lose

Menendez has put himself in a bit of a box with the legal arguments he has already pursued. He argued all the way to the U.S. Supreme Court that the actions he took on Melgen’s behalf were part of his official duties as a U.S. Senator and should therefore be shielded by the Speech or Debate Clause. Courts rejected those arguments because the Speech or Debate Clause shields only legislative activities. Lobbying Executive Branch officials is not protected.

Now Menendez will be arguing that those same actions were so unconnected to his position as a Senator that they could not be official acts. As the government has pointed out, Menendez effectively has argued that nothing a U.S. Senator does can be prosecuted as bribery: if it’s not a legislative act shielded by the Speech or Debate clause, then it’s not an official act and can’t support a bribery conviction. Heads I win, tails you lose.

For example, in their original motion to dismiss based on failure to allege official acts, filed on July 20, 2015, his lawyers argued: “With respect to a U.S. Senator, invoking oversight authority and a threatened use of official powers would be an official act, but it also would be immunized by the Speech or Debate Clause.” (p. 6 fn. 4). But the courts have now rejected the latter half of that claim.

With respect to the Medicare dispute and the port contract issue, the government is indeed alleging that Menendez threatened to hold hearings and otherwise to invoke his oversight authority. Having conceded that these would amount to official acts, it will be a challenge now for the defense to claim otherwise without developing whiplash.

Effect of the McDonnell case on the Bob Menendez trial

As with all criminal trials, the Menendez case is going to come down to the government’s evidence. Menendez may claim that in his interactions with Executive Branch officials he was merely seeking information. He may argue he was not advocating for Melgen or trying to influence those officials. If that turns out to be true, it may be a defense. Merely attending a meeting to gather information would probably not fit the Supreme Court’s definition of official act.

But the government is alleging much more. It intends to prove that Menendez was vigorously advocating on Melgen’s behalf, trying to persuade or pressure Executive Branch officials to decide questions in Melgen’s favor. Such actions would fall squarely within McDonnell and would qualify as official acts by Menendez.

McDonnell’s primary effect will be on the jury instructions. Menendez’s lawyers will not get the case dismissed prior to trial based on the official act issue. Even in McDonnell the Supreme Court did not say it was impossible for any jury to find McDonnell guilty. The problem was that the jury was not properly instructed about the definition of official acts.

The McDonnell case will therefore shape the Menendez jury instructions concerning what the government must prove about official acts. The defense will argue the government has not met its burden. But if it proves the allegations in the indictment, the government should have no trouble meeting the McDonnell standard.

Every public corruption defendant for the foreseeable future is going to seek salvation in the McDonnell opinion. Menendez may have some other viable defenses, including his claim that there was no quid pro quo and that Melgen’s gifts were based simply on friendship. But the McDonnell case and the definition of official act are unlikely to save him.

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Michael Flynn’s Immunity Request: What it Means and How Immunity Works

What does Michael Flynn’s immunity request mean?

President Trump’s former National Security Advisor Michael Flynn has offered to testify about potential Russia connections to the Trump campaign if he is given immunity from prosecution. This raises questions about why he would seek immunity, how the immunity process works, and the potential implications for Flynn and the Trump administration. So here is a primer on Immunity 101, with a focus on the Flynn case.

Michael Flynn's immunity request raises tough issues for Congress

Does This Mean Flynn Is Guilty of Something?

Many sources have pointed out that when talking about aides to Hillary Clinton, Flynn himself suggested that if you seek immunity it probably means you’re guilty of a crime. President Trump has said the same thing and has also urged Flynn to insist on immunity. If you play that syllogism out the conclusion is pretty clear.

But the truth is usually more complicated. Seeking immunity doesn’t always mean you are guilty of something. It does indicate the witness has at least some reason to be concerned about potential criminal exposure. In a politically-charged investigation a witness could fear an unfair prosecution even if convinced he did nothing wrong. Flynn’s attorney has said that in the current political maelstrom Flynn would be crazy to testify without immunity. That’s probably sound advice.

Even without knowing the details of what Flynn would say, it’s not surprising he would seek immunity at this early stage. That doesn’t necessarily mean Flynn has some huge bombshell to drop into the middle of the investigation. It also doesn’t necessarily mean Flynn has information about wrongdoing by others. He may be concerned only about his personal liability for things such as his foreign lobbying activities or potentially lying to the FBI. Or it may just be that his lawyer is acting out of an abundance of caution and Flynn ultimately will not be implicated in any crime at all.

Flynn has maximum leverage right now. Nobody can force him to speak. There’s little downside for Flynn in remaining silent and little upside to testifying now without a deal. His lawyer has tantalizingly dangled the claim that Flynn “has a story to tell” and would be happy to tell it if he receives immunity. There’s a lot of political pressure to get to the bottom of this controversy. Investigators may be tempted to give a quick grant of immunity in order to get Flynn’s story. That’s no doubt what Flynn’s attorney is hoping. That seems like a smart play.

What Does Immunity Cover?

Immunity comes into play when a potential witness has a Fifth Amendment right not to incriminate himself. This right to “take the Fifth” applies not just in court but in other proceedings as well, including Congressional investigations. The request for immunity indicates the witness believes that if he testifies truthfully his testimony could potentially implicate him in some kind of criminal activity.

Immunity means only immunity from criminal prosecution. You can’t get immunity to protect yourself from embarrassment, political damage, civil suits, or other non-criminal fallout. A witness who testifies under a grant of immunity is still potentially subject to all of these other consequences — in fact, those other consequences may be more likely once the witness can no longer remain silent.

Immunity also doesn’t protect you from a prosecution for perjury, obstruction of justice, or related charges based on your immunized testimony — just ask Barry Bonds.

The federal immunity statutes,18 U.S.C. 6001-6005, provide what’s known as use and derivative use immunity. That means whatever the witness says can’t be used against him either directly or indirectly in any criminal proceeding. (Transactional immunity – a broader promise never to charge the witness at all – is not provided for by statute. It can only be obtained by agreement with prosecutors and is extremely rare.)

Direct use would be taking a transcript of the witness’s testimony and introducing it at his criminal trial. Derivative use means using the witness’s testimony to track down other leads and discover new information that is then used against the defendant. For example, if investigators used information learned from the immunized testimony to find new witnesses, those witnesses could not be called to testify against the immunized witness in a criminal trial.

The immunity order is supposed to ensure that, at least as far as criminal proceedings are concerned, the witness remains in exactly the same legal position as if he had never testified at all. Nothing that comes out of the immunized witness’s mouth can lead to evidence used against him in a criminal case.

Congress could choose to grant Michael Flynn's immunity request

Who Can Grant Immunity?

Under the federal immunity statutes immunity can be granted by the Department of Justice or by Congress. Administrative agencies can grant immunity as well, but they need the Attorney General’s approval. Congress does not – it can grant immunity even if DOJ objects.

If immunity is sought in a court or grand jury proceeding, the Department of Justice obtains an immunity order from a district court judge. DOJ will seek the immunity order after determining the public interest in obtaining the testimony outweighs the public interest in potential prosecution of the witness. The judge signs the order but does not review the wisdom of the decision — whether to grant immunity is  up to the Executive Branch.

Congress can likewise seek immunity for any witness called to testify in any Congressional proceeding or committee hearing. In a proceeding before the full House or Senate the request for immunity must be approved by a majority of the members. If the testimony is before a committee, the request must be approved by two-thirds of the members of that committee. Congress must give ten days notice of the request to the Attorney General.

The Attorney General can apply to the court to delay the issuance of the Congressional immunity order for up to an additional twenty days. DOJ can ask Congress not to grant the immunity, but cannot prevent it if Congress insists. Once again, the immunity order is issued by a judge but the court does not review the merits of the decision to grant immunity.

Once a court issues an immunity order, the witness no longer has a Fifth Amendment right to remain silent. The order directs the witness to testify and provides that nothing the witness says can be used against him, directly or indirectly, in a criminal proceeding. If the witness continues to refuse to testify, he is subject to contempt.

News reports refer to Flynn seeking immunity from the FBI, but the FBI itself cannot grant immunity. Immunity in connection with the FBI investigation of the Trump campaign would have to be granted by Department of Justice prosecutors working with the FBI. With Attorney General Sessions recused and calls for an independent prosecutor, there might currently be questions about who exactly within DOJ would make such a decision.

The FBI is investigating but as far as we know no grand jury proceeding has begun. For now, at least, Flynn’s immunity request appears to be primarily in connection with the Congressional investigations. If immunity were granted at this stage it appears Congress would grant it in order to have Flynn testify on Capitol Hill.

News sources on Friday reported that the Senate Intelligence Committee has already rejected Flynn’s request for immunity, calling it premature. Of course, that does not prevent the Committee from reconsidering and granting the request down the road. There have been no reports yet of any decision by the House Intelligence Committee, whose investigation seems mired in partisan gridlock.

How Will Investigators Decide Whether to Grant Michael Flynn’s Immunity Request?

Immunity should only be granted if there is a reasonable basis for the witness’s claim of self-incrimination. Investigators obviously don’t want to run around handing out immunity to every witness who refuses to talk without knowing what the witness will say. This is the “buying a pig in a poke” problem – you don’t want to give someone a free pass on unknown criminal conduct and have him end up confessing to the Kennedy assassination or something.

The most common way to determine whether immunity is appropriate is through a proffer session, either from the witness himself or from his attorney. In such an off-the-record proffer the witness or counsel tells investigators what the witness would say if granted immunity. The investigators, in return, agree not to use anything said during the proffer against the witness.

Before any immunity decision is made, Flynn or his attorney likely would give such a proffer to investigators. They may have already done so.

But the witness is not required to give a proffer. Flynn could remain silent and take the position, “You want to know what I have to say? Give me immunity.” This would be a hardball play by Flynn and his lawyer, but again, at the moment they have the most leverage. Granting immunity under those circumstances would certainly be a high-stakes gamble for Congress.

What If the Fifth Amendment Claim Is Bogus?

If a witness claims he has a Fifth Amendment privilege and investigators don’t believe the privilege claim is valid, they should refuse to grant immunity. They can go ahead and subpoena the witness to testify and see whether he in fact invokes the Fifth. Once actually on the stand the witness may decide to testify after all.

If the witness does refuse to testify, investigators can challenge the Fifth Amendment claim in a hearing before a judge. If a judge determines the privilege claim is valid, the witness may continue to remain silent unless and until he is granted immunity. If the judge finds there is no valid Fifth Amendment privilege, the judge may order the witness to testify. If the witness still refuses, he is subject to punishment for contempt of court or contempt of Congress. He may be jailed for contempt and held until he agrees to comply with the court order and testify.

This all takes a fair amount of time, of course, particularly if either side ends up appealing any court orders. If investigators don’t want to wait and the Fifth Amendment claim is even arguably valid, they may decide just to grant the immunity. That keeps the investigation moving rather than spending months litigating the privilege claim.

Does Getting Immunity Mean Flynn Could Never Be Prosecuted?

Strictly speaking, no. A grant of immunity under the federal immunity statutes doesn’t actually mean there is no way you can ever be prosecuted. The statutes provide only that in the event you are prosecuted your own testimony can’t be used against you directly or indirectly.

Theoretically the government can still prosecute a witness who has testified under a statutory grant of immunity. In such a case the government must establish that none of the evidence it will use is derived in any way from the immunized testimony. If there is a question the court will hold a hearing, and the government must prove by a preponderance of the evidence that it has an independent basis for each piece of evidence.

But practically speaking, if Congress agrees to immunize Flynn he almost certainly will never be prosecuted. Immunized witnesses rarely are. Even if they want to prosecute, it’s usually quite difficult for the government to meet the burden of proving that its case was not tainted by immunized testimony. The most famous example of this problem involves the prosecution of Oliver North.

Oliver North testifies on Capitol Hill

Oliver North testifies on Capitol Hill

Lessons of the Oliver North Case

Oliver North was a member of the National Security Council staff under President Reagan. He was implicated in the Iran-Contra affair, where the U.S. government illegally sold weapons to Iran and used the money to fund the Contra rebel group in Nicaragua. Iran-Contra led to an Independent Counsel investigation, and North was one of the targets of that investigation.

While the criminal investigation was going on, North was subpoenaed to testify before a joint Congressional committee that was also investigating Iran-Contra. Congress granted North immunity, against the wishes of the criminal prosecutors. He subsequently testified for several days and admitted to his role in the scheme, as well as to shredding relevant documents and lying to federal investigators.

North was later indicted and convicted of obstruction of justice and other crimes. But the U.S. Court of Appeals for the D.C. Circuit overturned his conviction on the ground that it improperly relied on the fruits of his immunized testimony.

Prosecutors and agents working on the criminal case had taken great pains to avoid any exposure to North’s Congressional testimony, which was widely televised. But the Court of Appeals held that, for each individual government witness called at trial, prosecutors had to prove the witness had an independent basis to recall every fact about which they testified. The government was required to show that the witness’s recollection had not been influenced in any way by viewing North’s immunized testimony. Prosecutors ultimately were unable to meet that burden and dismissed the case.

The same concerns surround a decision to immunize Flynn. Congress could take steps to minimize any potential exposure to the testimony, such as having Flynn testify only in a closed session, but the risk to any potential future criminal case would still be substantial.

The Congressional grant of immunity in North’s case ended up torpedoing his criminal prosecution. Congress must take great care when considering whether to immunize Flynn, lest it be accused of doing the same thing in his case.

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Supreme Court Allows Challenges to Jury Deliberations Based on Evidence of Racial Bias

What should a court do when confronted with evidence of racial bias in jury deliberations? At common law, once a case was over a verdict could not be challenged based on evidence of what happened during jury deliberations. This historical rule against the impeachment of jury verdicts is codified in Rule 606(b) of the Federal Rules of Evidence. The rule serves to encourage free and frank communications within the jury room, to prevent the harassment of jurors once a case is over, and to promote respect for and finality of jury verdicts.

Last week in United States v. Peña-Rodriguez the Supreme Court ruled 5-3 that the Constitution requires an exception to this rule when there is evidence of racial bias in jury deliberations. (I first wrote about the case when it was argued last fall, you can find that post here.) Faced with the evidence of such bias, the Court was understandably reluctant to leave the defendant without a remedy. But the implications for the jury system go far beyond this single case.

The Issue in Peña-Rodriguez

A Colorado jury convicted Mr. Peña-Rodriguez of unlawful sexual contact with two young women. After the case was over, two jurors reported to his defense attorney that another juror had demonstrated bias against Hispanics during deliberations. That juror reportedly made several statements demonstrating his prejudices, including that the defendant was likely guilty because Mexican men have a macho attitude and believe they can take whatever they want when it comes to women.

The Colorado courts ruled Peña-Rodriguez could not challenge his conviction based on this evidence. Colorado has a rule similar to Federal Rule 606(b), which prohibits the impeachment of jury verdicts based on evidence of what happened during deliberations. The great majority of states follow this same rule.

Nine states, however, follow a more relaxed standard known as the Iowa rule. These states prohibit inquiry into a juror’s own subjective beliefs following a verdict but do allow scrutiny of things that take place during deliberations, including statements reflecting bias by other jurors.

Scene from 12 Angry Men - Racial Bias in Jury Deliberations

Confronting Racial Bias in Jury Deliberations

Peña-Rodriguez argued in the Supreme Court that his Sixth Amendment right to a fair trial required that he be allowed to challenge his conviction. In an opinion by Justice Kennedy, the Supreme Court agreed. The Court ruled there must be an exception to the no-impeachment rule when there are allegations of racial bias in jury deliberations.

The Court held, in effect, that race is different. Our country has a long and troubled history involving racial discrimination, including within the justice system itself. In light of that history, it is essential that there be mechanisms to ensure racial bias does not infect jury verdicts. When there is evidence of such bias, there must be a remedy: “When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.”

It’s true there are other safeguards against biased jurors, including the voir dire process of jury selection. But the Court argued these might not be as effective when it comes to rooting out potential racial animus. Attorneys might be reluctant to press potential jurors about bias out of fear of alienating or offending them. Fellow jurors might be hesitant to report biased conduct that takes place prior to deliberations because it is difficult to accuse a fellow juror of being a bigot.

The Court noted that not every offhand comment or stray remark will justify a hearing challenging the verdict: “For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” The Court said the statements “must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Determining whether that threshold is met will be up to the discretion of the trial judge, who may evaluate the evidence in light of the entire case.

Notably, the Court did not spell out exactly what procedures a trial court should follow when presented with such evidence. Nor did it specify what exactly a defendant must show in order to set aside a verdict and obtain a new trial. The question before the Court was simply whether a defendant has the right to raise such a challenge at all. The details of how that is done will be worked out in the lower courts.

The Court concluded:

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.

The Dissenting Opinions

Justice Thomas dissented. He claimed the historical understanding of the right to a jury trial, as embodied in the Sixth Amendment, did not include the right to impeach a jury’s verdict for any reason. As a result, he argued, even if there were sound policy reasons that might cause a legislature to allow such an inquiry, there was no basis for the Court to find that the Constitution requires it.

Justice Alito also wrote a dissent, joined by Chief Justice Roberts and Justice Thomas. He too claimed the Court’s decision, although well-intentioned, lacked a constitutional foundation. Like Justice Thomas, he argued that historically there was no right to impeach a jury’s verdict and such a right thus could not properly be found in the Sixth Amendment. Congress adopted the traditional no-impeachment policy in Rule 606(b), and the Court had no basis to disturb that policy decision.

Justice Alito argued jury deliberations should be protected because jurors are “ordinary people” who “make decisions the way ordinary people do in their daily lives.” They should not be second-guessed by “trained professionals” who “do not speak the language of ordinary people.” In order to ensure free and frank communications, jury deliberations should be immune from scrutiny even if they occasionally reflect potential improper bias. The law protects other communications, such as those between spouses or attorney and client, even when they include evidence of misconduct. The same should be true, he argued, of jury deliberations.

In addition to agreeing with Justice Thomas’s historical arguments, Justice Alito challenged the majority’s empirical claims that other safeguards in the jury system are inadequate to protect against racial bias. He noted there are many resources discussing how to raise the issue of potential discrimination during voir dire without offending potential jurors. He also said it made little sense to  claim a juror might be somehow reluctant to report biased statements prior to deliberations but more willing to report them after the verdict.

Justice Alito noted that although the majority tried to limit its holding, once the no-impeachment rule was breached it would be difficult to limit the rule only to cases involving racial bias.

jury room door - what should a court do with evidence of racial bias in jury deliberations

Opening the Door to the Jury Room

The central dispute in Peña-Rodriguez was not whether the juror’s comments were reprehensible; all agreed that they were. It wasn’t even over whether it would be a good idea to allow the verdict to be impeached. The dispute was simply over who gets to decide: Congress or the Court. The dissenters argued Congress had already made a policy choice by enacting Rule 606(b) and that there was no basis for the Court to intervene. The majority held the Constitution trumps that decision by Congress when racial bias is involved.

The Court’s decision is understandable; it would be difficult for something that calls itself a justice system to provide no remedy at all when confronted with the evidence in this case. But at the same time, bright-line rules do have some advantages. Now that the door to the jury room has been cracked open, a lot of unanswered questions remain.

Justice Alito is correct when he says there is probably no principled way to prevent the Court’s decision from being expanded in the future. As the majority notes, our country’s history with racial discrimination is unique. But when it comes to an individual defendant’s Sixth Amendment right to a fair trial, it is hard to justify a rule that allows challenges to only some types of discrimination. What about juror bias based on the fact that the defendant is a Muslim? Or a woman? Or gay?

The Court held that remedying racial bias in deliberations is necessary in order to prevent “a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” But surely verdicts that were upheld in the face of other types of discrimination would result in a similar loss of confidence and would require a similar remedy. Logic seems to demand that the Court’s rationale be expanded to other forms of bias in future cases.

Unintended Consequences and Practical Difficulties

 The Court’s decision may have additional unintended consequences. The rule against impeachment of verdicts was designed in part to shield jurors from harassment. There may be greater risk now that attorneys will aggressively seek out jurors after a loss to see if there is information to support a challenge. As the Court observed, those contacts will be limited to some degree by state legal and ethical rules governing when parties and their counsel may contact jurors.

There is also a fear that allowing these challenges will simply drive prejudice underground. Perhaps the biased juror will not speak up, where his ideas may be challenged and refuted by the other jurors, but will simply keep his prejudices to himself out of fear of having his statements challenged later. But this assumes a certain baseline of legal knowledge and perhaps is not a realistic concern. It’s hard to know how much the free-flowing discussion among a jury of Justice Alito’s “ordinary people” is influenced by the intricacies of the law on post-verdict challenges.

Practical issues will confront trial courts faced with a challenge to deliberations. The Supreme Court purposely did not spell out exactly how a court should decide whether a defendant deserves a hearing, or when a court should order a new trial. How does a judge determine whether expressions of bias by a single juror had an impermissible impact on the unanimous verdict of twelve? Should evidence of a single racist juror automatically result in a new trial? Is the court to presume the remaining eleven jurors were passive sheep unable to resist? It may be at least as likely that the remaining jurors rejected the improper views and disregarded any further statements by that juror.

The Peña-Rodriguez jury deliberated for twelve hours. Assessing the impact of a handful of biased statements on that entire deliberative process is a daunting challenge for a judge. It may require examining individual jurors one by one. This again implicates the interests about juror harassment and finality of verdicts that justified the rule against impeachment in the first place. Nevertheless, in those (probably rare) cases where this type of evidence emerges, it will now be up to trial courts to undertake that inquiry, with little guidance from the Supreme Court on how to proceed.

Amending Rule 606, and Schools of Constitutional Interpretation

Now that the Court has constitutionalized the right to challenge some deliberations, it would make sense for Congress to amend Federal Rule of Evidence 606(b) to make something like the Iowa rule the federal standard. Challenges to jury verdicts should be allowed if there is evidence of any kind of improper bias or animus during deliberations. It makes little sense to wait for years while lower courts try to sort out whether Peña-Rodriguez requires them to entertain challenges based on other forms of discrimination.

A final side note: in light of the upcoming confirmation hearings for the nomination of  Neil Gorsuch to the Supreme Court, the different schools of constitutional interpretation highlighted in Peña-Rodriguez are particularly interesting. With its concluding flourish about a maturing legal system confronting the country’s history of racial discrimination, the majority embraced a “living Constitution,” where constitutional norms grow and adapt to support a developing society. The dissenters, on the other hand, represent a classic textualist or originalist view. They interpret the Constitution strictly based on its text and how it was understood at the time it was adopted.

Judge Gorsuch falls squarely within the originalist school of interpretation, as did the man whose seat he would fill, Justice Scalia. It seems likely that if he had been on the Court, Gorsuch would have sided with the dissenters and it would have been a 5-4 decision. This is one of those areas where replacing Justice Scalia with Justice Gorsuch probably would not result in a significant shift in the balance of the Court.

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Why Jeff Sessions Is Unlikely To Face Perjury Charges

Did Jeff Sessions commit perjury? Washington is abuzz over whether the new Attorney General may have lied during his confirmation hearing before the U.S. Senate. During his sworn testimony and in a written questionnaire, Sessions denied having any communications with Russian officials during the course of President Trump’s campaign.

Then last week the Washington Post reported Sessions had met with the Russian ambassador to the United States in July and September of 2016. At the time, then-Senator Sessions was a member of the Senate Armed Services Committee but was also serving as a top foreign policy advisor to the Trump campaign.

In public statements and at a press conference last Thursday, Sessions claimed his responses were truthful. He said he understood the questions to relate only to contacts with Russians on behalf of the campaign. His meetings with the Russian ambassador, he maintained, were in his role as a Senator, not as a Trump campaign surrogate. As such, he did not consider those meetings relevant. Although he said in hindsight he wished he had mentioned the meetings, he said he had no intent to lie.

Attorney General Sessions has now recused himself from any investigation involving President Trump’s campaign. But this has not put to rest the controversy surrounding his Senate testimony. Some Democrats have called on him to resign, and there have been widespread allegations that the new Attorney General may be guilty of perjury.

The political implications of all of this are still playing out. But criminal implications are a different matter. New information may come to light, but based on the facts we have now it’s extremely unlikely a perjury case against Sessions would be appropriate or successful.

Did Jeff Sessions commit perjury? Testifying before Congress.

The Questions and Answers

The precise questions and answers are extremely important in any perjury case. Here is the question posed by Senator Al Franken during the Senate Judiciary Committee hearing on January 10, and Senator Sessions’s response (video here):

Franken: CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, “Russian operatives claimed to have compromising personal and financial information about Mr. Trump.” These documents also allegedly say quote, “There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.”

Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?

Sessions: Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

As many have observed, Sessions did not answer the question asked. Rather than saying what he would do as Attorney General, he volunteered information about his own contacts with the Russians. After this non-response, Franken did not follow up about Russian contacts but simply said, “Very well,” and moved on.

In a written questionnaire submitted after the hearing, Sessions again denied any contact with Russian officials regarding the 2016 election. In that questionnaire Sen. Patrick Leahy asked: “Several of the President-elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Sessions responded: “No.”

The Law of Perjury

The relevant perjury statute, 18 U.S.C. § 1621, applies to any witness under oath who “willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.” Sessions was under oath. He now admits he met with the Russian ambassador. There is little doubt this information would have been material to the Senate’s inquiry. So as with so many white collar cases, the issue boils down to the potential defendant’s state of mind.

Not all false statements under oath are perjury. A perjury charge requires the government to prove the defendant was deliberately lying. If the witness misunderstood or misinterpreted the question, that is not perjury. Nor is it perjury if the witness didn’t remember relevant information. Even if a witness is deliberately evasive, it’s not perjury if the testimony is literally true. To convict, the government must prove beyond a reasonable doubt not only that the statement was false but also that the witness believed it was false when he made it.

Bronston v. United States

Any discussion of perjury should begin with the leading Supreme Court case, Bronston v. United States (1973). Mr. Bronston testified in a bankruptcy proceeding involving his motion picture company. During that testimony the following exchange took place:

Q:      Do you have any bank accounts in Swiss banks, Mr. Bronston?

A:      No, sir.

Q:      Have you ever?

A:      The company had an account there for about six months, in Zurich.

At the time of this testimony Bronston had no Swiss bank accounts and his company had previously had an account in Zurich. His answers were therefore literally true. It was also true, however, that Bronston had previously held a personal Swiss bank account. That account was closed at the time of his testimony. His non-responsive answer to the second question effectively concealed that information.

The government later prosecuted Bronston for perjury. It alleged that his answers, although literally true, were misleading and left a false impression and therefore constituted perjury “by negative implication.”

The Supreme Court rejected this theory and held perjury requires testimony that is actually false. The Court noted that true statements do not violate the language of the statute, even if they are non-responsive or potentially misleading. The statute requires that the witness make a statement he does not believe to be true.

Even if a witness is deliberately evasive, the Court noted, that is to be expected in an adversary proceeding. The burden is on the questioner to pin the witness down. Perjury will not be charged “simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth.”

President Clinton denies allegations concerning Monica Lewinsky

What Is the Meaning of “Is?”

A more well-known example of allegations of perjury involved former President Bill Clinton. When testifying in the grand jury he was asked about a statement made by his lawyer in a civil deposition. His lawyer had stated that Monica Lewinsky filed an affidavit saying there “is no sex of any kind in any manner, shape or form, with President Clinton.” When asked whether that statement by his lawyer was false, Clinton famously replied, “It depends on what the meaning of ‘is’ is.”

As Clinton explained, his lawyer’s statement was present tense – there “is” no sexual relationship. At the time of the statement the relationship between the President and Ms. Lewinsky had ended some time ago. As a result, Clinton testified, the statement that there “is” no sexual relationship was literally true.

The House of Representatives characterized this testimony as perjury in its Articles of Impeachment. But no criminal prosecutor worth his salt would have brought a perjury case. In a trial for perjury the President would have had a rock solid defense: his answer was true. The political consequences of an answer seen as slick and evasive were devastating, but the testimony was not criminal.

Why Proof of Perjury Is So Demanding

As these cases demonstrate, proving perjury is difficult. This is by design. As the Court noted in Bronston, if perjury is not narrowly construed even honest witnesses might fear to testify. Being examined under oath is stressful and unfamiliar territory for most people. Questions may be misunderstood or misinterpreted. Witnesses might forget relevant information. People should not fear being charged with perjury for inaccurate testimony that may have resulted simply from confusion, stress, or misunderstanding.

This is particularly true considering how easy it usually is for a skilled questioner to avoid any such confusion. The questioner must be alert to any evasion or uncertainty and ask appropriate follow-up questions. For example, the lawyer in Bronston failed to ask the obvious next question: “I didn’t ask about the company Mr. Bronston. Did you personally ever have any Swiss bank accounts?” And the questioner in President Clinton’s deposition also failed to follow up: “OK, so you say there is no sexual relationship of any kind. Was there ever?”

It’s not enough if testimony ends up being misleading or unclear. Perjury prosecutions are only successful when a good questioner has removed any reasonable possibility of uncertainty or confusion. Short of that, there is usually too much wiggle room. If the witness later claims the answer was literally true or the question was misinterpreted, proving a deliberate lie beyond a reasonable doubt will be extremely difficult.

Did Jeff Sessions Commit Perjury?

With these principles in mind, let’s consider whether there might be a valid perjury case against Sessions. His critics have focused on his statement to Senator Franken that he “did not have communications with the Russians.” Taken in isolation, that is untrue. But Franken’s question was based on a news report that Trump campaign representatives had been in contact with Russian officials. Sessions’s statement was preceded by his observation that he was occasionally considered a campaign surrogate.

Given the context of Franken’s question and Sessions’s full response, it’s not unreasonable for Sessions to maintain he was referring to any Russian contacts he may have had in his role as a campaign surrogate. Both the question and answer were couched in terms of contacts by the campaign. If it’s true his meetings had nothing to do with the campaign, Sessions could have thought they were not relevant.

Senator Franken has said he believes Sessions should have mentioned the meetings anyway. Sessions himself said in his news conference he now thinks it would have been better if he had done so. But testimony that ends up being misleading or incomplete is not perjury if it is based on an unclear or misinterpreted question the witness thought he was answering.

When it comes to the written questionnaire the potential case against Sessions is even weaker. It specifically asked whether he had communicated with any Russian officials “about the 2016 election.” If in fact his meetings did not involve the election, then his “no” response was completely truthful.

Senator Sessions may have been honestly trying to respond to the questions. He may have been confused or may have interpreted the question differently, as he says. He may have been trying to be cagey to conceal relevant information. Or he may have been deliberately lying. Just as in the case of Mr. Bronston, we’re not sure. And in criminal law, that kind of uncertainty usually translates to reasonable doubt.

Senator Al Franken questions Jeff Sessions

The Unasked Follow-Up Questions

Some have argued that Sessions used his non-responsive answer to pre-empt further questioning by his blanket denial of any contact with the Russians. That doesn’t make a lot of sense to me. Even if you are willing to commit perjury if forced, why go out of your way to lie about something that wasn’t asked? Why try to head off a line of questions that Sen. Franken did not even appear to be pursuing? Sessions could have easily given some non-committal answer about what he would do as Attorney General without exposing himself to possible perjury charges.

In any event, a non-responsive answer does not “pre-empt” further questioning — it invites it. As the Court said in Bronston, the burden is on the questioner to pin a wily witness down. Imagine if Sen. Franken had followed up with this series of questions:

“Well, OK, I didn’t ask you about your own contacts with the Russians, but since you brought it up — are you testifying that you never had any contact with any Russian officials in your role as an advisor to the Trump campaign?”

“Did you have any contact with any Russian officials at all during the time you served as an advisor to the Trump campaign, whether or not those contacts were on behalf of the campaign?”

“Are you aware of anyone else involved in the Trump campaign who had any contact with representatives of the Russian government?”

“Did anyone in the Trump campaign ever ask you to contact any officials in the Russian government on behalf of the campaign?”

If we had answers to these questions, there would be no ambiguity. If Sessions had denied any contact with Russian officials in any capacity at all, the perjury argument would be much stronger. On the other hand, if he had responded truthfully about his meetings with the Russian ambassador, all the controversy of the past week would have been avoided.

Political Remedies v. Criminal Remedies

Critics of Sessions may say I am being too lenient. They may say I am bending over backwards to give him the benefit of the doubt. Yes, I am. That’s how the criminal justice system works. Sessions is innocent until proven guilty – not the other way around. And proving guilt beyond a reasonable doubt to a unanimous jury is a lot tougher than indicting someone on Twitter.

Many are convinced that Sessions deliberately lied. They may be correct. But a criminal case has to be based on evidence, not on gut feelings and suspicious circumstances. Currently the government could muster little in the way of admissible evidence to contradict what Sessions has said about his intent.

Of course this assumes no additional evidence comes to light. If emails, other documents, or witness testimony were to surface indicating that Sessions’s meetings with the ambassador were in fact on behalf of the campaign, that would completely change the picture.

As with President Clinton and his “meaning of is” answer, the political consequences of all of this for Sessions and Trump may be severe. But political remedies are one thing, and criminal remedies are quite another. At least at this stage, those calling for perjury charges are off the mark.

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