Sidebars: 10th Anniversary Edition
The Top Ten posts
On October 15, 2014, I launched Sidebars and published my first post, about a New York Times reporter facing contempt charges for refusing to identify a source. In the ten years since then this blog has gone through several different formats and platforms, with the most recent change being the move to Substack nearly two years ago. But my focus has remained the same: analysis of current issues in white collar criminal law.
On this tenth anniversary, I thought it would be interesting to look back and see which Sidebars posts have generated the most traffic. One thing stood out right away: although I write about a variety of white-collar topics, almost all of my most popular posts have something to do with Donald Trump and the various investigations and prosecutions surrounding him. This makes sense as a matter of timing: it was also nearly ten years ago that Trump first announced he was running for president. And given his impact on the country, it’s not surprising that topics related to Trump have generated the most interest among my readers. Whatever else you think about Trump, there’s no doubt he’s been a great source of material for writers about white collar crime.
So with that introduction, here’s a look back at the top ten Sidebars posts of all time.
10: The Definition of White Collar Crime (November 26, 2014)
I'm particularly pleased that this post managed to make the Top Ten. It deals with a question that’s pretty fundamental to Sidebars: what is white collar crime? There is no universally accepted definition, even though white collar clearly is recognized as a distinct area of legal practice -- not to mention as the subject of my law school class and the subject of this blog.
This post, from way back in 2014 in only the second month of the blog, is my take on the definition and characteristics of white collar crime. One key takeaway: the name itself is something of a misnomer.
9: Lying on a Security Clearance Form: The Crime of False Statements (June 5, 2017)
This post is an example of a format I have frequently used: taking a current legal issue in the news and using it to write a more general primer on a leading white collar statute.
The False Statements statute, 18 U.S.C. 1001, is a workhorse in the white collar prosecutor's stable. It broadly criminalizes written or verbal material false statements made to the federal government, even if not under oath. Early in the Mueller investigation there was speculation that individuals including Trump son-in-law Jared Kushner and Attorney General Jeff Sessions may have violated 1001 by concealing various foreign contacts when they filled out paperwork to apply for a security clearance. In this post I explained the scope and requirements of the false statements statute and how it potentially could apply in such a case.
8: Trump’s Inaction During the Capitol Riot as a Possible Crime (January 16, 2022)
During the House Committee investigation of the January 6, 2021 Capitol riot, Rep. Liz Cheney raised some eyebrows when she asked whether Trump, “through his action or inaction” on January 6, had sought to obstruct the Congressional certification of the election. Cheney was focusing on the evidence that Trump sat in the White House watching the riot unfold for more than three hours and took no steps to try to stop it.
Committing a crime usually requires a bad act (actus reus) accompanied by a bad state of mind (mens rea). The focus on Trump’s refusal to try to stop the riot raised an interesting, broader question: when can criminal liability be based on a failure to act? That was the topic of this post, which clocks in at number 8.
7: Mr. Attorney General, It’s Time to Appoint a Special Counsel (November 18, 2022)
The timing on this one was kind of fun. In the aftermath of the January 6 riot, the criminal investigations, including of Trump himself, were handled by career prosecutors in the Justice Department. Then in November 2022 Trump announced his 2024 candidacy for president.
Once Trump officially became a candidate, I thought it was important for the Justice Department to appoint a special counsel to handle the Trump investigations. With Biden as the presumptive Democratic 2024 nominee, having his own Justice Department investigating his primary political rival posed the kind of potential conflict for which the Special Counsel regulations were created.
A number of commentators at the time argued that a special counsel was unnecessary and would needlessly slow down the investigation. One widely-circulated article was titled, “Mr. Attorney General, It’s Too Late to Appoint a Special Counsel.” I disagreed and wrote this post to explain why.
Later on the same day that I posted this, Attorney General Merrick Garland appointed Jack Smith. I’m not saying Garland subscribes to Sidebars, but still . . .
6: Contempt of Congress (April 20, 2015)
This is another oldie with some staying power. I wrote this post back during the Obama administration when the Republican Congress held the IRS Commissioner, Lois Lerner, in contempt. I explored the weaknesses and legal issues in the statute that makes contempt of Congress a crime.
The topic keeps resurfacing with our increasingly polarized politics, as Congresses controlled by one party seek to hold members of the opposing party in contempt. Usually the cases still go nowhere, for reasons I explain in the post. But recently we saw two successful convictions for contempt of Congress: former Trump advisors Steve Bannon and Peter Navarro were each found guilty of defying subpoenas from the House January 6 Committee and went to prison. The statute may have its flaws, but it’s not completely toothless.
5: The Emoluments Clause, Bribery, and President Trump (November 29, 2016)
Remember the Emoluments Clause? Before president-elect Trump even took office, there was controversy about his extensive business holdings and whether he might profit from the presidency in violation of the Constitution's emoluments clause. This obscure Constitutional prohibition became the subject of lawsuits, Congressional hearings, and innumerable outraged social media posts. But in the end the clause proved essentially unenforceable. Trump’s businesses made millions, including from foreign leaders and governments, while he was serving as president.
My fifth most popular post, written after the election but before Trump was inaugurated, explained the foreign emoluments clause, how it relates to federal bribery law, and whether Trump was at risk of violating it.
4: D.C. Circuit Skeptical of Trump’s Immunity Claims (January 9, 2024)
My fourth most popular post (and the most recent one in the Top Ten) was my breakdown of the arguments in the D.C. Circuit on Trump’s claims of presidential immunity. The court was indeed skeptical and went on to unanimously reject Trump’s claims. Unfortunately, we all know what happened in the Supreme Court after that.
3: The Legal Issue That Could Sink the New York Trump Prosecution (March 27, 2023)
Several months before the New York case against Trump was indicted, I wrote this post discussing why I was skeptical of the prosecution’s legal theories. The case was later indicted and Trump was found guilty on 34 counts, so the prosecutors proved me wrong - at least for now.
Since writing the post, based on additional research and discussions with others, I’m less concerned about the “money or property” aspect of the fraud charge. But I am still skeptical of how the government establishes the required intent to defraud based on private, internal records that were never shown to anyone else. Former New York state prosecutors claim it’s not a problem, but apparently there is no case from New York’s highest court approving this theory. We’ll see what happens as Trump appeals; I expect challenges to the proof of intent to defraud to be a major part of that appeal.
2: Yes, Colluding With Russians to Interfere with the Election is a Crime (July 5, 2017)
Remember all the arguments about “collusion?”
In the early days of the Mueller investigation, a frequent refrain from Trump and his supporters was that “collusion” with the Russians by Trump and his campaign, even if it did take place, would not be a crime. I wrote this post in response. I explained how allegations that the Trump campaign colluded with the Russians to influence the election, if true, could constitute a conspiracy to defraud the United States -- even if the conduct did not directly violate another criminal statute. With all the debate about “collusion,” the post generated a lot of interest.
1: Judge in Mueller Case Upholds Legal Theory that Makes “Collusion” a Crime (November 23, 2018)
My most popular post of all time also dealt with the question of "collusion."
In February 2018 Special Counsel Robert Mueller indicted thirteen Russian individuals and three Russian companies for engaging in a social media campaign to influence the 2016 presidential election. The lead charge in that indictment was a conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful government functions of the Federal Election Commission, State Department, and Justice Department. This was the same charge I had discussed more than a year earlier in my second most popular post, described above.
One of the indicted Russian companies appeared in court and challenged that conspiracy charge. In November 2018 the federal judge in the case denied that challenge and upheld the conspiracy theory that effectively makes "collusion" a crime. My post describing that judge's ruling, and the possible implications for the Trump campaign, became my most popular post of all time.
Thanks for indulging me in this little trip down memory lane. And thank you very much for reading and supporting Sidebars for the last ten years. I’m very grateful.
I have been a subscriber for the past couple of years and wish I had been from the beginning. I first came across Randall Eliason when I took The Great Course on white collar crime that he taught. I am a retired FBI agent and lawyer and worked white collar crime (corruption of public officials) for 17 of my 28 years. The course was a of academic interest to me and a great review of the laws applicable to prosecuting this variety of crime. For those new to Professor Eliason, he writes with clarity not often found by lawyers. I have thoroughly enjoyed his legal analyses and look forward to reading his insights on the difficult issues in the years to come.