Oregon Governor John Kitzhaber: What the Federal Grand Jury Investigation Means

A political scandal is roiling the Pacific Northwest. Oregon’s Democratic Governor John Kitzhaber resigned last week, just months after winning reelection. On the same day he announced his resignation, news broke that a federal grand jury has subpoenaed a vast number of documents from the Oregon government. The question now is whether the improprieties that cost the governor his job will also result in federal criminal charges.

Acceptance speech for Oregon's new Governor, John Kitzhaber

The controversy involves the activities of Kitzhaber and his fiancé, Cylvia Hayes. Hayes and Kitzhaber have been together for years, although they were only recently engaged. When he took office in 2011, Kitzhaber announced that Hayes would assume the role and responsibilities of first lady. She lived with Kitzhaber in the governor’s mansion, referred to herself as Oregon’s first lady, and was widely treated as such.

Hayes also runs a company, 3E Strategies, that focuses on clean energy, environmental, and economic development issues. In addition to her first lady role, Kitzhaber named Hayes an unpaid policy advisor to the governor on those same issues.

The central allegation is that Hayes traded on her close relationship with the governor and status as first lady to obtain lucrative contracts for her company from various clean energy and environmental interest organizations, and then worked to support their agendas within the governor’s office.  There are also suggestions that the governor himself may have been involved to various degrees.

For example, Hayes allegedly received $118,000 from one clean energy group while at the same time advising the governor on issues favored by that group. She apparently received $25,000 from another non-profit while organizing meetings with state officials and urging them to adopt a government standards program promoted by the non-profit. Kitzhaber reportedly urged state employees to hire an expert favored by that group (and by Hayes) to implement that same program. Kitzhaber’s most recent budget apparently allocates funds for yet another organization working on climate issues that also paid Hayes in the past.

These and other allegations led to an escalating series of investigations. Last November the Oregon Government Ethics Commission opened an inquiry. Then in early February the state Attorney General began a criminal investigation and the Ethics Commission investigation was placed on hold. Less than a week later came the news that the Oregon U.S. Attorney’s Office and the FBI have launched a federal criminal probe, and Kitzhaber announced his resignation.

oregon flag

What the Federal Grand Jury Investigation Means – and What it Doesn’t 

There’s certainly plenty here that fails the smell test, but that’s often true in politics. A political scandal is one thing, but a federal criminal case is quite another. Before discussing what a federal grand jury might consider in a case like this, a few important caveats:

1) The existence of a grand jury investigation does not mean that any federal laws have been violated. A federal grand jury may investigate simply to satisfy itself that a crime has not been committed. This is particularly true when it comes to public corruption cases, which often involve the gray area between politics as usual and criminal misconduct. Unlike cases involving violent crime or drugs, for example, in a public corruption investigation it often is not clear at the outset that any crime has been committed. The purpose of the grand jury inquiry is to figure out what happened and whether there is probable cause a crime was committed. So although it is certainly not good news for Kitzhaber and Hayes that a federal grand jury is investigating their conduct, it is by no means a foregone conclusion that any charges will result.

2) There’s nothing inherently criminal about companies retaining Ms. Hayes because of her close relationship with the governor. If I were Kitzhaber’s college roommate and best friend and worked as a lobbyist in Oregon, businesses and organizations would want to hire me because of my perceived access to the governor and I would gladly accept their business. That sort of thing happens all the time. This case is simply more titillating – and potentially legally complicated – due to the nature of their relationship and her unusual status as “honorary” first lady.

3) Simply because groups who had contracts with Ms. Hayes succeeded in having their interests furthered in the Oregon government does not mean anything criminal occurred. A coincidence of interests and actions does not establish corruption. Again, this happens all the time: an organization spends money on lobbyists, letter-writing campaigns, and campaign contributions to encourage a politician to take a particular action, and the politician ultimately does. Depending on the facts this may appear unseemly, but for the most part that’s just politics.

This is particularly true here because Kitzhaber campaigned on many of these same issues and has long been a supporter of clean energy and other pro-environmental policies. The fact that he may have taken some actions supported by Ms. Hayes’ clients is not surprising. It would be a far different case, and far more suspicious, if the governor had reversed course on some particular policy or abandoned a long-held position because it conflicted with the interests of those who hired his fiancé.

4) The federal grand jury will consider only potential federal criminal violations. In most public corruption cases there are multiple possible remedies and avenues of punishment for any potential misconduct. Kitzhaber and Hayes may have violated Oregon state laws, or ethics or financial disclosure regulations, and if so the state Attorney General or the Ethics Commission may still pursue any appropriate administrative, civil or criminal remedies. And in most corruption cases there is always the sanction of the ballot box or public opinion, which has already severely punished Kitzhaber by ending his career.

 Decorative Scales of Justice in the library

What are the Potential Federal Crimes?

If federal prosecutors are investigating potential corruption, the most likely charges they would consider are honest services fraud and Hobbs Act extortion under color of official right. The same charges formed the heart of the recent case involving former Virginia governor Bob McDonnell and his wife. Honest services fraud and extortion under color of official right are essentially bribery by another name. Federal prosecutors use them to charge state and local corruption because the federal bribery statute generally applies only to federal officials.

In such a case, the government would be required to prove that a public official agreed to be influenced in the exercise of his or her official powers in exchange for receiving something of value to which he or she was not entitled. The essence of bribery is the quid pro quo, or this for that: in exchange for the benefit, the public official agrees to act in a certain way.

As applied to Kitzhaber, prosecutors will investigate whether he agreed to undertake some official action – sponsoring legislation, awarding a government grant or contract, hiring a particular individual, etc. – in exchange for something of value that he received. It’s not enough to show simply that he took actions favored by groups that were also paying Hayes. There must be an agreement by Kitzhaber that he would be influenced in exchange for some benefit to him.  If there were, that could form the basis for either honest services fraud or Hobbs Act charges.

There are other potential allegations floating around as well. Apparently the state was inadvertently preserving back-up copies of Kitzhaber’s e-mails from a personal account, and there are claims that he recently sought (unsuccessfully) to have a state employee delete them. There are also claims that Hayes did not report all of her consulting income on her taxes. Such allegations could potentially lead to obstruction of justice or tax charges.

 The Legal Status of Cylvia Hayes

As a sitting governor, Kitzhaber clearly was a public official subject to public corruption laws. An interesting twist in this case involves the legal ramifications of Ms. Hayes’ status as honorary first lady. She reportedly played an active and powerful role in Kitzhaber’s administration, attending staff meetings, making speeches, going on trade missions, giving orders to members of the governor’s staff, and even maintaining a desk in the governor’s office. On the other hand, she drew no state salary, did not receive state employee benefits, and did not have a government e-mail address.

The governor and his office have not been entirely consistent concerning Ms. Hayes’ status. At one point last summer the governor’s general counsel told the press they considered Ms. Hayes to be a public official for purposes of the state’s ethics and conflict of interest laws. She has at times filled out financial disclosure and other paperwork required of public employees.

More recently, however, when the state ethics commission began its investigation and requested copies of Hayes’ e-mails, she and the governor resisted by arguing that she was a private individual and the commission had no jurisdiction over her. The state Attorney General’s office recently disagreed, ruling that Hayes is a public official for purposes of the state records law and that the e-mails must be produced. Hayes has announced she will fight that decision in court.

Regardless of her status under the state records law, it’s unclear whether Hayes would be considered a public official for purposes of federal corruption statutes. The office of a first lady is considered largely ceremonial. Ms. Hayes may have had the power to attend a meeting, make a speech, or argue in favor of a particular position, but in the end she didn’t really have the ability to create policy, hand out government grants, or otherwise exercise real official decision-making power. It’s possible, though, that she would still be considered a public official, as someone who acted for and on behalf of the people of Oregon in an official capacity.

But this is where conspiracy law comes in. Mrs. McDonnell was charged with the same public corruption offenses as her husband not because she was a public official, but because they conspired together to use the power of the governor’s office to enrich themselves. A similar theory could be applied in the Oregon case, if the facts support it: the evidence would need to establish that Kitzhaber and Hayes, working together, agreed with the groups paying Hayes that Kitzhaber would take certain actions as Governor in exchange for the payments.  In that case, regardless of Hayes’ own status, both would be liable based upon Kitzhaber’s status as a public official.

This could require further investigation into the financial relationship between Kitzhaber and Hayes. If they kept all of their finances separate, it becomes more difficult for prosecutors to allege that a payment to Hayes amounted to a thing of value given to Kitzhaber. On the other hand, if they pool at least some of their resources as do most married couples, it is easier to establish that a benefit to one was also a benefit to the other.

Another possibility is that Hayes alone had a corrupt deal with various groups to further their interests in the state government in exchange for the payments,  but Kitzhaber had no knowledge of the agreement and there was no  conspiracy. A novel legal question then would the be whether Hayes, as honorary first lady, owed a duty of honest services to the citizens of Oregon not to exploit her position for private financial gain. If she did, honest services fraud against Hayes alone would be a viable charge even if she is not considered a public official, because honest services fraud also applies to private sector individuals who accept bribes in violation of a special duty of trust and confidence.

Possible Outcomes 

The federal investigation could conclude a number of different ways. First, of course, the grand jury could decide that no criminal charges are appropriate. As noted above, this would still leave state authorities free to pursue any appropriate state civil or criminal penalties.

If there were an indictment, it could involve both Kitzhaber and Hayes acting together as co-conspirators, as in the Bob and Maureen McDonnell case. Such a case could also potentially involve defendants from one or more of Ms. Hayes’ clients, if the allegation is that they were bribing Hayes and the governor.  Or, as was the case in Virginia, those who paid the bribes could end up testifying for the government after being immunized or pleading guilty themselves. Depending on how the facts unfold, there could also be a case against Hayes alone or (perhaps more unlikely) against Kitzhaber alone.

There’s a lot of smoke here – enough to cause a sitting governor to resign – but is there a federal criminal fire? That’s what the grand jury will determine, and it is just getting started. Stay tuned.

Update: on Friday, June 16, 2017 federal authorities announced they would be filing no criminal charges against Kitzhaber and Hayes. The investigation is now closed.

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What to Expect at Maureen McDonnell’s Sentencing

Update 2/20/15:  Judge Spencer has sentenced Maureen McDonnell to a year and a day in prison.

Judge James Spencer surprised many observers on January 6, 2015 when he sentenced former Virginia Governor Bob McDonnell to only two years in prison. Maureen McDonnell, Virginia’s former First Lady, is now preparing to face the same judge for her sentencing on Friday, February 20.

bob and maureen

The Governor’s sentence was a substantial departure below the roughly 6 to 8 year prison term called for by the federal Sentencing Guidelines. The question now is whether Maureen – considered by many to be the main driver of the corruption scheme – can expect similarly lenient treatment.

Mrs. McDonnell was convicted on a total of nine felony counts: two counts of conspiracy, two counts of honest services wire fraud, four counts of Hobbs Act extortion, and one count of obstruction of justice. On December 1, 2014, Judge Spencer granted a defense motion to overturn the conviction for obstruction of justice for lack of evidence, leaving eight counts on which Mrs. McDonnell will be sentenced on Friday.

The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.


Mrs. McDonnell’s Role in the Case – “Out, Damned Spot!”

The evidence at trial portrayed Mrs. McDonnell as a willing and eager participant in the corruption scheme involving the Governor’s office. She actively sought out extravagant gifts from businessman Jonnie Williams, including the $19,000 shopping spree in New York for herself and the Rolex watch for the Governor, as well as the large, no-paperwork “loans” that Williams provided. While enjoying expensive dinners, vacations, and other examples of Williams’ largesse, she was described as being “exuberant” or like a “kid in a candy store.” She also took steps to conceal the scheme, including the conduct that later led to her obstruction of justice charge.

Many of the Governor’s supporters, including even some of the couple’s own children, put much of the blame for the entire scheme on Maureen. To hear them tell it, as Scotland had its Lady Macbeth, so Virginia had its Lady McDonnell: an ambitious and perhaps slightly mad woman driving her high-profile husband to his doom. During his four days of trial testimony the Governor himself seemed to place much of the blame on his wife, leading to widespread accusations that the Governor was a cad who had “thrown his wife under the bus.”

Mrs. McDonnell’s attorneys, of course, paint a very different picture of the former First Lady. They portray her as a woman devoted to her family and to public service, who gradually became overwhelmed by the burdens of raising her family, supporting a husband whose career frequently kept him away from home, and dealing with a public role and spotlight she had never desired. These combined stresses, her lawyers argue, ultimately led to the “mistakes in judgment” that resulted in the couple’s downfall.

The Sentencing Guidelines Calculations

In the wake of Bob McDonnell’s sentencing both sides in Maureen’s case are probably less concerned about the Sentencing Guidelines, because it seems clear the judge is not going to follow them. During the former Governor’s sentencing the judge said he thought the sentence called for by the Guidelines was “ridiculous under these facts.” Nevertheless, in any federal case the judge is required to use the Guidelines as a starting point. Those calculations still provide an important baseline, as well as a potential indication of how the judge feels about Mrs. McDonnell’s culpability.

As in Bob McDonnell’s case, the applicable Guideline is 2C1.1, which covers public corruption offenses. The probation department calculated the adjusted offense level as 26, based on the following:

Base offense level: 12 (for a person not a public official – 2C1.1(a)(2)

Offense involved more than one bribe: add 2 – 2C1.1(b)(1)

Value of bribes between $70K and $120K: add 8 – 2C1.1(b)(2)

Offense involved high-ranking public official: add 4 – 2C1.1(b)(3)

Total: 26

Offense level 26 with no criminal history results in a Guidelines sentencing range of 63-78 months.

The prosecution agrees with these calculations and has asked the judge to adopt them.

The defense makes a couple of half-hearted objections. First, they argue that the value of the bribes is less than $70,000 and the Guidelines should be reduced accordingly. Although the judge already determined the value of the bribes when he sentenced the former Governor, Mrs. McDonnell argues that the total in her case should be less because she was acquitted on two counts on which Bob was convicted and which involved bribes worth about $21,000. But because Maureen was convicted on the conspiracy counts, the value of all the bribes that furthered the conspiracy should still be held against her and this argument is unlikely to prevail.

The second defense argument is that the case really involved only a single bribe spread out over a series of payments and the two-level increase for more than one bribe is not appropriate. This argument was already rejected in Governor McDonnell’s sentencing and there is no reason to expect the judge would reach a different result here.

Sentencing Guidelines aficionados may be interested in a couple of points on which the probation department seems to have been more generous to Mrs. McDonnell than she arguably deserved. First, 2C1.1 provides a base offense level of 14 for defendants who are public officials but only 12 for those who are not. The probation department concluded that Mrs. McDonnell was not a public official.

There’s a reasonable argument that this is wrong. The Guidelines expressly state that “public official shall be construed broadly” and the definition goes far beyond just those who are elected or employed by the government. In particular, it includes any person acting “for or on behalf” of a government “in any official function,” or someone in a “position of public trust” with responsibility for “carrying out a government program or policy.”   2C1.1, App. Note 1.

Given the official and ceremonial duties of a First Lady and the many government programs in which she was involved, she arguably fits this definition. Her own sentencing memorandum goes into great detail about all of her work on various government initiatives in areas such as aid to military families, health care, and economic development of the Virginia wine, film, and tourism industries.

The second interesting point is the absence of any adjustment for obstruction of justice. As I discussed in an earlier post, Maureen was actually indicted for and convicted of obstruction. The charge was based on her efforts to conceal the fact that Jonnie Williams had purchased expensive designer clothing for her by returning the clothing to him with a note suggesting they had discussed donating the clothes to charity. Williams testified at trial that the note was a fabrication, and the jury clearly agreed.

The judge dismissed the obstruction of justice conviction because her conduct wasn’t sufficiently linked to the grand jury investigation, which is how the government had framed the charge. But the Guidelines provide their own two-level enhancement under 3C1.1 for any defendant who attempts to obstruct the investigation, prosecution, or sentencing of her own case.   Unlike the criminal conviction, the obstructive behavior does not have to be linked to any particular federal proceeding but can be connected simply with the overall investigation. And as a sentencing enhancement, the judge need only find that the conduct occurred by a preponderance of the evidence, not beyond a reasonable doubt.

When dismissing her obstruction of justice conviction, Judge Spencer wrote that Mrs. McDonnell had acted with corrupt intent and “undoubtedly attempted to mislead authorities” investigating her case. This finding alone would seem to be enough to impose the two-level enhancement for obstruction.

I’m a little surprised that neither the probation department nor the prosecution raised the possibility of the enhancement for obstruction. This seems like a case where it would be appropriate. Perhaps again it’s simply a matter of everyone feeling that the Guidelines calculations are not all that important, given the judge’s apparent inclination not to follow them.

What to Expect at the Sentencing

 Once the Sentencing Guidelines are calculated, the judge is required to consider all of the sentencing factors listed in 18 U.S.C. § 3553(a) and fashion a sentence that is reasonable and appropriate. The Guidelines provide the starting point but the judge, as demonstrated in Bob McDonnell’s case, is not strictly bound by them. Other factors to be considered under§ 3553(a) include the nature and seriousness of the offense, the defendant’s personal and criminal history, the need for deterrence, the need to protect the public, and the need to avoid any sentencing disparities among similarly-situated defendants.

In Mrs. McDonnell’s case the government has taken the very unusual step of requesting a sentence below that called for by the Sentencing Guidelines. The sole reason is the sentence that Bob McDonnell received. His sentence of only two years was about a 70% reduction from the bottom of the recommended Guidelines range in his case. In order to avoid any unwarranted disparity in sentencing, the government recommends a similar 70% reduction for Mrs. McDonnell, which would result in a sentence of 18 months in prison.

This must be a bitter pill for the prosecutors to swallow, but it seems like the right decision. The government (along with many others) clearly believed that the former Governor deserved a much more substantial sentence than he received. But given the reality of his sentence, prosecutors made the right call in requesting something less for Mrs. McDonnell. Maureen’s recommended sentence was always going to be less than her husband’s because she was not an elected public official, and that’s as it should be.

The defense, of course, requests that the judge sentence Mrs. McDonnell to no jail time at all and instead impose a substantial period of community service.

The actual sentence will depend in large part on how the judge feels about Mrs. McDonnell’s role in the overall corruption scheme. He gave some indication of that during the former Governor’s sentencing, when he remarked, “although Mrs. McDonnell may have brought the serpent into the mansion, the Governor knowingly brought him into his business and financial affairs.” Contrary to many of Bob McDonnell’s supporters, the judge seems to believe that responsibility rests squarely with the former Governor, not with anyone else. Bob McDonnell was the elected public official, lawyer, and former attorney general, and he should have held himself to a higher standard.

It therefore seems very likely the judge will sentence Maureen McDonnell to something less than the two years her husband received. Can she hope to receive probation and community service, as her lawyers requested? Given her active, vigorous involvement in encouraging and soliciting the bribes from Williams, as well as her own attempts to obstruct and derail the investigation, it would be very surprising if the judge did not conclude that at least some jail time is appropriate.

Of course, this judge has surprised everyone before when it comes to the McDonnells. That fact alone must give Mrs. McDonnell some hope.

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Yates v. United States and the Problem of Overcriminalization

Update 2/25/15:  In a 5-4 decision the Supreme Court today ruled in favor of Yates, finding that fish are not “tangible objects” under 18 U.S.C. 1519.  I’ll have an analysis of the opinion in next week’s post.

There are too many crimes on the books and too many criminal cases being filed. That was the argument of many who weighed in at the Supreme Court in support of a fishing captain charged with a twenty-year felony for throwing some undersized fish overboard.

fishing boat

Yates v. United States: Did the Prosecution Go Overboard?

I first wrote about Yates v. United States when the case was argued last November. It raises the novel legal question whether a fish is a “tangible object” within the meaning of a federal obstruction of justice statute. More broadly, though, the case has launched a renewed debate about overcriminalization in federal law.

To recap, John Yates is a commercial fisherman who was catching red grouper in the Gulf of Mexico. An inspector boarded his vessel and discovered about 70 fish that were below the legal minimum size. He issued Yates a civil citation and told Yates to keep the undersized fish in storage until he got back to port, where they would be seized by federal officials. Once the inspector left his boat, however, Yates ordered one of his crew members to throw the undersized fish overboard and replace them with larger ones. He also instructed his crew to lie to the federal officials at the port about the destruction of the fish.

Three years after this incident, Yates was indicted for three federal crimes: destroying evidence to prevent its seizure (18 U.S.C. § 2232), false statements to a federal official (18 U.S.C. § 1001) and obstruction of justice (18 U.S.C. § 1519). The obstruction statute provides a twenty year penalty for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration” of any federal matter.

Yates’ primary argument in the Supreme Court is that Section 1519, which was passed as part of the Sarbanes-Oxley reforms in the wake of Enron and other corporate scandals, is an “anti-shredding” provision aimed at the destruction of documents and other records. In context, he argues, the term “tangible object” in the statute refers only to objects that may store information within them, such as computer hard drives or flash drives. It does not cover other kinds of objects – including fish.

The Issue of Overcriminalization

The meat of the Yates case involves canons of statutory interpretation and what Congress actually meant by the term “tangible object,” but the argument took place against a larger backdrop concerning the issue of overcriminalization. A number of the groups who filed amicus briefs in support of Captain Yates focused on these broader policy concerns, with the central point being: can’t we all agree it’s a little bit nuts that throwing some undersized fish back into the ocean could get you thrown in jail for twenty years?

Federal overcriminalization has been an increasing concern in recent years, spawning lots of commentary and even Congressional hearings. In a 2009 book Three Felonies a Day, defense lawyer Harvey Silverglate argued (with a bit of hyperbole) that given the vast number of federal crimes and how broadly they are written, each of us probably commits three felonies a day just by living our lives.

Overcriminalization has even spawned a Twitter feed, A Crime a Day (@CrimeADay), which Tweets out a daily citation to a frequently obscure, and occasionally silly, federal crime. Recent examples: “18 U.S.C. §707 makes it a federal crime to use the words ‘4-H Club’ without authorization” (Feb. 6); “16 U.S.C. §460k-3 & 50 C.F.R. §32.34 make it a federal crime to use a motorboat to hunt a groundhog in the Tallgrass Prairie Wildlife Refuge” (Feb. 2).

Overcriminalization actually refers to several different but related arguments: there are too many criminal laws, the laws are too broad and vague, and prosecutors are bringing too many inappropriate cases.

Decorative Scales of Justice in the library

#1: Too Many Criminal Laws on the Books

There are undoubtedly too many federal crimes — so many, in fact, that no one really knows the exact number.  A group of criminal law professors who wrote an amicus brief on behalf of Yates claimed that there are currently some 4,500 criminal laws and more than 300,000 criminal regulations.

The criminal code has been stitched together piecemeal over more than 200 years, with individual statutes often passed in response to the “crisis du jour.” This results in overlap, redundancy, and disorganization. The Sarbanes-Oxley amendments that included 18 U.S.C. § 1519 are a good example: in response to Arthur Andersen’s massive shredding of Enron documents, Congress passed several new obstruction of justice statutes that were largely unnecessary and redundant.

Congress has an incentive to tackle almost any problem by throwing criminal penalties at it to demonstrate they are taking it seriously. Conversely, there is very little political upside for a politician to repeal or cut back unnecessary or excessive criminal laws, lest she be labeled “soft on crime” in an opponent’s 30-second attack ad during the next election. Once on the books criminal laws tend to stay on the books – and to multiply.

But although the existence of many statutes covering relatively arcane matters makes good fodder for sites such as @CrimeADay, it’s not the root of the problem. It’s amusing to point out that it’s a federal crime to use the Smokey Bear character without authorization (18 U.S.C. § 711) or to transport water chestnut plants in interstate commerce (18 U.S.C. § 46), but cases charging those offenses are not exactly crowding the criminal dockets. Most prosecutors have probably never heard of them. If we have large numbers of crimes that are relatively unknown and largely unenforced, that’s more of an aesthetic problem than a practical one. Even if you think we all may commit three felonies a day, the fact remains the feds aren’t swooping in and arresting us.

Critics also argue that the vast number of federal statutes on the books gives prosecutors too much power to pick anyone they wish to target and then find some obscure offense with which to charge them. Although this could be an issue in a rare case, for the most part I think the fear is misplaced. If you have a prosecutor with a bad motive, scaling back the number of crimes won’t really solve the problem. Most cases involve multiple potential violations from which a prosecutor may choose. Yates, for example, was charged with three different crimes, and potentially could have been charged under a different obstruction statute even if §1519 does not apply.

In other words, even if §1519 were not on the books and we weren’t debating whether fish are tangible objects, it would not mean there was no way to charge Yates with a crime. You could probably reduce the number of federal crimes by two-thirds and still not have much of an impact on a prosecutor who was determined to target someone with a criminal case.  If a bad prosecutor really wants to go after someone for the wrong reasons, he or she has plenty of weapons. In such a case the problem is the prosecutor, not the criminal laws.

#2: Existing Laws Are Too Broad and Vague

Arguments about overcriminalization also frequently focus on the breadth and vagueness of various federal criminal statutes and the amount of conduct they seemingly cover. During the Yates oral argument the Court was definitely concerned about overbreadth. Justice Alito at one point noted that the statute could apply to “very trivial matters” and yet carries a twenty-year penalty. But although this is true, it is nothing new.

Criminal statutes – particularly white-collar statutes — frequently need to be written in sweeping language in order to cover the full range of potential criminal conduct. Federal mail and wire fraud, for example, broadly prohibit any “scheme or artifice to defraud,” and the same twenty-year felony applies both to Bernie Madoff and to an employee who submits a phony expense report on-line. It’s not that easy to write an obstruction of justice statute that would cover, say, the destruction of a murder weapon in a homicide but would exempt the destruction of Captain Yates’ fish. As a result, the same statute may apply to criminal conduct that is vastly different in terms of its severity or harm caused.

The breadth of the criminal statutes authored by the legislative branch is usually tempered by the two other branches. The judicial branch, in extreme cases, may find a statute unconstitutionally vague or overbroad. But in every case it is the judge who determines the appropriate sentence. Yates, for example, was convicted of a 20-year felony but the judge sentenced him to only 30 days. Former Virginia Governor Bob McDonnell was recently convicted of eleven felonies and in theory faced up to 190 years in prison — but the judge actually sentenced him to only two years.

That’s why all of the hue and cry about Captain Yates facing a twenty-year felony was mostly rhetoric. No one on either side ever believed Yates would actually receive twenty years. Given the enormous range of criminal conduct that may fall within the same statute, the system relies on judicial discretion to fashion an appropriate sentence. Particularly now that the Sentencing Guidelines are no longer mandatory, judges have substantial ability to do just that.

The second mechanism for limiting the scope of potentially overbroad statutes is prosecutorial discretion: the executive branch’s obligation to decide what cases to bring and how to charge them. It’s prosecutorial discretion that I believe is really at the heart of the current debate about overcriminalization.

#3: Prosecutorial Discretion – Or the Lack Thereof

There is an increasing sense among many, including perhaps the Supreme Court, that federal prosecutors are no longer doing a very good job deciding when to bring federal criminal charges. At the Yates oral argument, Justice Scalia asked incredulously what kind of “mad prosecutor” would charge Yates with a twenty-year felony. Justice Kennedy went so far as to say he wasn’t sure if prosecutorial discretion was a concept the Court should even rely upon any more.

Yates arose in the shadow of a case from last term that raised similar concerns, Bond v. United States. In Bond a jilted wife tried to injure her husband’s lover by sprinkling some caustic chemicals on her mailbox and doorknob. The chemicals caused a slight skin irritation on the woman’s thumb that was easily treated with cold water. Federal prosecutors subsequently charged Bond with violating a statute prohibiting the use of chemical weapons. The Court ultimately held the law did not apply to Bond, but was clearly troubled that prosecutors would seek to apply a federal chemical weapons statute to a relatively minor offense that easily could have been prosecuted under state law. During the Yates oral argument Justice Scalia asked sarcastically whether the prosecutor in Yates was the same one who had charged Bond.

I believe the real issue in overcriminalization is not so much all of the laws on the books or the breadth of those laws, but how prosecutors choose to enforce them and what cases they decide to bring. Looking at Captain Yates, for example, there’s no question his conduct deserved to be punished. But the underlying misconduct – catching the undersized fish – was only a civil violation. Surely some other kind of civil penalty, such as a hefty fine or the suspension or revocation of his fishing license, could have served to deter similar misconduct and adequately punish him.

It’s hard to know the exact scope of any problem concerning prosecutorial discretion. The extreme cases such as Yates and Bond tend to get all the attention – and as they say in journalism, nobody writes about all the planes that don’t crash. But it does seem there has been an unusual number of recent high-profile examples of federal prosecutors bringing substantial criminal charges in cases that look like they could have been handled some other way. When you have Supreme Court Justices suggesting that the concept of prosecutorial discretion doesn’t mean anything any more, it’s probably time to sit up and take notice.

I wonder if this issue isn’t symptomatic of the general increased polarization we see in public life and public discourse. In politics, compromise has become a dirty word, and the country seems increasingly divided. If the rest of society tends to place people in opposite camps with little room for middle ground, then perhaps there is a risk that prosecutors too increasingly come to view people either as good guys or as criminals, with little recognition of the many shades of gray in between those two extremes.

I have a friend and former colleague who likes to describe the problem by noting that when your only tool is a hammer, every problem starts to look like a nail. When you’re a federal prosecutor, there’s a risk that every problem starts to look a crime. But of course many bad acts aren’t crimes and aren’t really a prosecutor’s problem at all. There’s a lot of sleazy, rotten, unethical, nasty stuff that goes on in the world that isn’t criminal – and shouldn’t be.  And even if you can find a charge that might apply, that doesn’t mean a criminal prosecution makes sense.

This is a primarily a matter of training and prosecutorial culture. Young prosecutors need to have it drilled into them from day one, so the sound exercise of their discretion becomes a fundamental part of their professional identity. In a world of limited resources (and seemingly unlimited criminal laws) prosecutorial discretion is an essential part of our system, but to be effective it must be exercised with some wisdom, compassion, and common sense. That only comes with experience, and with training and supervision from those who have experience.

Not every problem is a nail, and not every case of wrongdoing requires a federal criminal solution. A well-functioning criminal justice system requires a renewed focus and emphasis on the sound exercise of prosecutorial discretion, along with a renewed appreciation for the proper role of the federal criminal penalties hammer.

And as for Captain Yates – federal prosecutors really should have had bigger fish to fry.

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Maureen McDonnell and Obstruction of Justice

One of the few bright spots for the McDonnell defense team came when the judge threw out Maureen McDonnell’s obstruction of justice conviction. With the operation of the federal Sentencing Guidelines, however, Mrs. McDonnell may end up having won the battle but lost the war.

Robert and Maureen McDonnell

Former Virginia Governor Robert McDonnell and his wife Maureen were convicted in federal district court in Alexandria, Virginia on September 4, 2014. Mrs. McDonnell was convicted on nine counts: two counts of conspiracy, two counts of honest services fraud, four counts of Hobbs Act extortion, and one count of obstruction of justice.

On eight of those nine counts both of the McDonnells were charged and convicted. The obstruction of justice charge, however, applied only to Maureen. The jury found her guilty, but on Dec. 1, 2014 the judge granted a defense motion to overturn her conviction and enter a judgment of acquittal on that count. Her convictions on the other eight counts were not affected and she will be sentenced on those counts on February 20, 2015.

The Basis for the Obstruction of Justice Charge

Of the many gifts and benefits lavished on the McDonnells by businessman Jonnie Williams, one of the more notorious was Maureen McDonnell’s New York shopping spree. The evidence at trial established that in April of 2011, Mrs. McDonnell contacted Williams and asked him to take her shopping. She explained that she needed a dress for a political event to be held in New York City, and that in exchange for the clothing she would arrange for Williams to be seated next to Governor McDonnell at that event.


Williams agreed to meet Mrs. McDonnell in New York and accompanied her to several luxury stores. She told him she needed dresses not only for the New York event but also for her daughter’s upcoming wedding and for her own wedding anniversary party. During the shopping trip Maureen spent nearly $11,000 at Oscar de la Renta, $5,600 at Louis Vuitton, and $2,600 at Bergdorf Goodman, all paid for by Williams. True to Maureen’s word, Williams was seated next to Governor McDonnell at the New York political event that same evening.

In March of 2013, when the investigation into the relationship between the McDonnells and Williams was heating up, Maureen gave Williams’ brother a box and a letter and asked him to deliver it to Williams. In the box were some of the dresses that Williams had purchased for Maureen in April 2011, along with a note that read in part:

I truly hope your daughter will now be able to enjoy these lovely outfits and show them off on many grand occasions. If not, I’m sure there are many exemplary charitable organizations like we talked about who would welcome the opportunity to auction them for a wonderful cause having been worn only once by the First Lady of Virginia to her daughter’s Wedding at the Executive Mansion and celebrating her 35th Wedding Anniversary with the Governor.

Williams testified at trial that this note was a “fabrication.” The expectation had always been that Maureen would keep the dresses. He and Maureen had never discussed her returning them for his daughters or donating them to charity; in fact, the dresses were not even close to his daughters’ size. After he received the note and dresses, he testified, he got a “sinking feeling” and promptly called his lawyer.

The government’s theory at trial was that Maureen had written the note and returned the dresses in an attempt to throw the government investigators off the trail by suggesting that the gifts from Williams were not really gifts at all. The jury agreed and found her guilty of obstruction of justice.

Obstruction of Justice: The Legal Standards

The statute with which Maureen was charged, 18 U.S.C. § 1512(c)(2), provides a twenty year penalty for anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so.” This broad catch-all provision covers a wide range of potentially obstructive behavior, from destroying or tampering with physical evidence to witness tampering or intimidation. “Official proceedings” include proceedings before all three branches of the federal government.

It’s clear that Mrs. McDonnell attempted to influence or impede the investigation into her and her husband’s relationship with Williams. As the trial judge found, she “undoubtedly attempted to mislead authorities” who were investigating the case. Where the government’s charge fell short was in the link between her conduct and the particular proceeding that she was charged with attempting to obstruct.

The Supreme Court’s leading case on obstruction of justice is United States v. Aguilar.  Aguilar was a federal judge who was suspected of taking part in a criminal conspiracy.  FBI agents went to his house to question him and he lied to the agents by denying any involvement. He was later charged with obstructing the grand jury investigation that was going on at the time of that interview.  The government’s theory was that by lying to the FBI agents Aguilar was seeking to feed the grand jury false information.

The Supreme Court reversed Aguilar’s conviction.  Although Aguilar was clearly seeking to impede the FBI’s inquiries by lying to the agents, the Court held there was an insufficient nexus between his behavior and the grand jury proceeding that he was actually charged with obstructing.

Obstruction of justice does not occur in a vacuum; there is no “obstruction in the air.”  In order to convict someone for endeavoring to obstruct a particular proceeding, the Aguilar Court held, the government must prove the defendant had the requisite corrupt intent. That requires proof that: 1) the defendant knew about the proceeding; and 2) the defendant knew that his endeavor, if successful, would have the “natural and probable effect” of interfering with the due administration of justice in that same proceeding.  There must be a connection in “time, causation, or logic” with the proceeding in question.

In Aguilar’s case, although he knew a grand jury investigation was pending, there was no evidence that the agents who interviewed him were there specifically on behalf of that grand jury or that they intended to relay his information to the grand jury.  Aguilar may have been hoping that the false information might somehow make its way into the grand jury, but that was not enough. Criminal liability requires a more direct link between the defendant’s conduct and the proceeding he allegedly seeks to obstruct. It could not be said that simply lying to the FBI agents would have the “natural and probable effect” of obstructing a grand jury proceeding in which the agents might never even testify.

Maureen McDonnell and Obstruction

Maureen McDonnell’s obstruction conviction ultimately foundered on the same shoals as Judge Aguilar’s.  The indictment charged her with endeavoring to obstruct a particular proceeding: the investigation of the grand jury that ultimately indicted her.  At the time she wrote the note and sent back the dresses, however, that grand jury investigation had not yet begun.

The fact alone was not necessarily fatal. Aguilar was charged under an older obstruction of justice statute, 18 U.S.C. § 1503, which requires that a proceeding actually be pending at the time of the obstructive conduct.  But McDonnell was charged under 18 U.S.C. § 1512(c)(2),  a statute of more recent vintage that was passed as part of the Sarbanes-Oxley reforms in 2002.  One key difference between the two statutes is that under § 1512 a proceeding need not yet be pending for a defendant to be found guilty of attempting to obstruct that proceeding.

But as the Supreme Court held in the case involving accounting giant Arthur Andersen, it is one thing to say that a proceeding does not have to be pending. It is quite another to say that a proceeding does not even need to be contemplated by the defendant.  To have the requisite corrupt intent, the defendant must have a particular proceeding in mind that she intends to obstruct, even if that proceeding has not yet officially begun.

There was no evidence produced at trial that Mrs. McDonnell was aware of the possibility of the federal grand jury proceeding. Her counsel had informed her at that time that there was no federal grand jury investigation of her, and she had received no grand jury subpoenas. There was simply no basis to conclude that her intent at the time she sent the note was to obstruct that particular proceeding.

There was evidence that Mrs. McDonnell at the time knew about a Virginia state investigation of her and the governor and knew about a federal grand jury investigation of Williams. But the former would not be a federal proceeding under the statute, and in any event she was not charged with obstructing either of those investigations. She was charged only with attempting to obstruct the grand jury that ultimately indicted her and her husband.

Again, there can be no “obstruction in the air.”  Maureen did engage in obstructive conduct, but the government produced no evidence that the federal grand jury investigation she was charged with obstructing was even on her radar at the time.  Given that lack of evidence, throwing out her conviction simply required a relatively straightforward application of the Aguilar precedent.

Effect of the Sentencing Guidelines

An interesting wrinkle in this case involves the federal Sentencing Guidelines and how they treat obstructive conduct.  Even had Maureen’s conviction for obstruction of justice been upheld, it would have made no practical difference under the Guidelines.  The recommended sentence for the public corruption convictions is so much higher that the conviction for obstruction would have had essentially no additional effect.

However, the Sentencing Guidelines also have their own mechanism for taking into account obstructive behavior.  Guideline 3C1.1 provides that the sentencing judge may impose a guidelines offense level increase of two points for obstruction of justice if the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.”

A Guidelines enhancement like 3C1.1 requires the judge to find that the conduct occurred only by a preponderance of evidence, not beyond a reasonable doubt. The sentencing judge could easily find that Maureen attempted to obstruct the investigation of her own case within the meaning of this Guideline. In fact, in the order overturning her obstruction conviction, the judge noted that Mrs. McDonnell acted with a corrupt intent to mislead the authorities investigating her case. That finding alone would seem to support the Guidelines enhancement.

Although it may seem a bit counter-intuitive, the fact that the judge threw out her conviction for obstruction of justice would be no impediment to the same judge imposing this Guidelines enhancement. Unlike the obstruction of justice statute, the Guidelines do not require a precise link to a particular federal proceeding. Her attempts to derail the overall investigation could be sufficient.

That’s why I suggested that in getting her obstruction of justice conviction thrown out Maureen may have won the battle but lost the war.  Due to the operation of the Sentencing Guidelines, even without the conviction for violating the obstruction of justice statute, her obstructive conduct revealed at the trial may still result in her receiving a higher sentence.

Of course, Mrs. McDonnell holds the ultimate trump card here:  what the Guidelines end up calling for may not matter.  When sentencing her husband, the judge departed substantially below the sentence called for by the Guidelines and said he thought the recommended Guidelines sentence was ridiculous on these facts.  Assuming he feels the same way about Maureen, her obstructive conduct will end up making no difference because the judge will not follow the Guidelines anyway.

I’ll discuss all of this in more detail in a post in a couple of weeks previewing Mrs. McDonnell’s sentence.

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