RICO and the Mueller Investigation

Special Counsel Robert Mueller’s investigation has produced guilty pleas from two individuals and the indictment of two more. It remains to be seen what additional charges, if any, will follow. Some have floated the idea that Mueller might consider charging violations of the Racketeer Influenced and Corrupt Organizations Act, or RICO, 18 U.S.C. §§ 1961-1968. Although originally aimed at organized crime, RICO can be a powerful tool in complex white collar cases as well.

So could Mueller be mulling RICO charges? RICO could potentially apply – depending on what Mueller finds, of course. But in the end I think he’s unlikely to play the RICO card.

Special Counsel Robert S. Mueller, III

The Different Areas of Mueller’s Investigation

The potential charges in Mueller’s investigation vary depending on which of several possible tracks the investigation follows. The first such track involves the heart of Mueller’s inquiry: any crimes directly related to Russian interference with the election and possible collaboration by Trump campaign officials. If prosecutors find evidence of those crimes, charges could include conspiracy to defraud the United States or conspiracy to violate federal election laws or computer hacking laws.

A second investigative track includes cover-up crimes: false statements, perjury or obstruction of justice in connection with the Russia probe. This could include lying to the FBI during interviews, lying on security clearance forms, false testimony before Congress or in the grand jury, or efforts to obstruct the investigation. Two cooperating witnesses, Michael Flynn and George Papadopoulos, have already pleaded guilty to false statements for lying to the FBI. There have been allegations that Jared Kushner and Attorney General Jeff Sessions may have unlawfully concealed contacts they had with Russians during the campaign. And claims that the president himself may have obstructed justice through such actions as firing James Comey have been a key part of the investigation.

There is a potential third track as well: the possibility that while investigating connections between Trump and Russia Mueller will uncover other crimes not directly related to the campaign. The charges filed against former Trump campaign manager Paul Manafort, for example, include allegations of years of money laundering involving Ukrainian connections that predated the campaign. The infamous Russia “dossier” includes claims about ties between Russian individuals and the Trump organization that could involve crimes such as international money laundering. In Michael Wolff’s controversial new book Fire and Fury, former Trump advisor Steve Bannon also predicts that money laundering involving Russia will end up a centerpiece of Mueller’s probe.

Mueller’s investigation could result in charges in any one of these areas. RICO is potentially a better fit for some than for others.

A Quick Primer on RICO

Congress passed the Racketeer Influenced and Corrupt Organizations act in 1970. As its name suggests, RICO’s primary purpose was to give the federal government new tools to prosecute criminal groups, such as organized crime families, seeking to infiltrate and control legitimate organizations. But the breadth of RICO’s language has made it possible for prosecutors to apply it in more routine white collar business and corruption cases as well.

RICO doesn’t really define a new crime. Instead, it prohibits engaging in a sustained pattern of already criminal activity in connection with a business or other “enterprise.” This has led one prominent commentator to characterize RICO as “the crime of being a criminal.” RICO provides hefty penalties of up to twenty years in prison, as well as forfeiture of any assets related to or derived from the criminal activity.

Every RICO case shares two requirements: proof of an “enterprise,” and proof of a “pattern of racketeering activity.”

Enterprise: In some RICO cases the enterprise is the organization through which the defendants commit their criminal acts, such as an organized crime family. In other cases the enterprise is more like a victim, such as a legitimate corporation or labor union that is infiltrated by the RICO defendants through their criminal activity.

Enterprise is defined in the statute to include any legal entity such as a corporation or partnership. An enterprise may also consist of a group of individuals associated together but not a legal entity, called an “association in fact” enterprise. Rejecting arguments that RICO should be limited to cases involving formal business organizations, the Supreme Court has made it clear that an association in fact enterprise need not have any legitimate purpose or formal structure. Any group of individuals who come together to commit a series of crimes may potentially be characterized as an association in fact enterprise. Another name for such a criminal group, of course, is a conspiracy – and the breadth of the enterprise definition has led some to suggest that RICO is simply a conspiracy statute on steroids.

Pattern of Racketeering Activity: Every RICO case also requires the government to prove a “pattern of racketeering activity.”  This requirement has two components: there must be acts of racketeering activity, and those acts must form a “pattern.”

Racketeering activity is defined in the statute to include a lengthy list of federal crimes. It includes many offenses traditionally associated with organized crime such as narcotics, illegal gambling, extortion, and trafficking in stolen goods. It also includes a number of white collar offenses such as bribery, mail and wire fraud, obstruction of justice, and money laundering. The inclusion of these crimes as “racketeering activity” is what makes RICO potentially applicable to many white collar cases.

Racketeering activity also includes crimes such as murder, kidnapping, extortion and arson that are punishable under state criminal laws. This was one of RICO’s more powerful innovations: federal prosecutors could now take a widespread group committing different crimes previously punishable only at the state level, package the crimes as a RICO case, and bring a single prosecution in federal court. In organized crime cases where local prosecutors were either unable or unwilling to bring charges, RICO allowed the federal government to step in and take those organizations down.

A “pattern” of racketeering activity requires at least two different instances of racketeering activity no more than ten years apart. In reality, a pattern usually involves far more than two acts. The Supreme Court held in H.J. Inc. v. Northwestern Bell Telephone Co. that a pattern requires proof of “continuity plus relationship” among the acts of racketeering. The acts must have the same or similar purpose, results, participants, victims or methods of commission or be otherwise interrelated, and must take place over some substantial period of time.

RICO contains four different prohibitions:

Section 1962(a) prohibits using the income generated by a pattern of racketeering activity to acquire an interest in, or to establish or operate, any enterprise. A violation of 1962(a) is a two-step process: the defendant earns money from a pattern of racketeering activity, and then uses that money to invest in or operate the enterprise. This is the type of offense at which RICO was primarily aimed: the infiltration of businesses and other organizations by those who earned their money through criminal operations.

Section 1962(b) is similar to 1962(a) but involves only a one-step process. It prohibits using the racketeering activity directly to acquire an interest in or control over an enterprise. This would apply, for example, to a criminal organization using extortion or bribery to control the behavior of those operating a business or government organization.

Section 1962(c) is by far the most commonly-used RICO provision. It prohibits any individual employed by or associated with an enterprise from conducting or participating in the conduct of the enterprise’s affairs through a pattern of racketeering activity. In Reves v. Ernst & Young the Supreme Court adopted the “operation or management” test for determining who is covered by this section. To participate in the conduct of an enterprise’s affairs a defendant must have some role in the operation or management of the enterprise and not just be a low-level employee following orders.

Finally, Section 1962(d) is a conspiracy provision, making it a crime to conspire to violate sections (a), (b), or (c).

RICO Charges and the Mueller Investigation

Due to RICO’s breadth, there is little doubt it could theoretically apply to a number of the allegations surrounding the Russia investigation. Whether RICO would make sense and exactly how it could apply would depend on the nature of the crimes Mueller ended up pursuing.

First, there are several different enterprises that would satisfy RICO. One would be the Trump campaign, Donald J. Trump for President, Inc.  As a corporation, the campaign itself qualifies as an enterprise. If Mueller determined that individuals conducted the campaign’s affairs through a pattern of racketeering activity, RICO section 1962(c) could apply.

Another potential enterprise would be the Trump Organization itself, or any one of its subsidiary corporations. If the investigation were focused more on the Trump Organization’s financial ties with Russian individuals, that could lead to charges that Trump and others participated in the conduct of the Trump Organization’s affairs through a pattern of racketeering activity under 1962(c), or used funds generated by a pattern of racketeering activity to operate the Trump Organization under 1962(a).

There also could be an association-in-fact enterprise made up of various individuals involved In the campaign. Again, this requirement is essentially equivalent to a conspiracy, so if individuals in the campaign were engaged in a pattern of criminal acts prosecutors could potentially name that group as an enterprise and charge their activity under RICO.

For the pattern of racketeering activity, the most obvious candidate is money laundering. If there are charges similar to those against Manafort involving ties between Russian individuals and the Trump Organization, long-term money laundering schemes could easily be charged as a pattern of racketeering activity used to fund and operate the Trump Organization.

If the criminal focus is on the campaign itself and a possible conspiracy with Russian individuals, a potential pattern of racketeering activity is less obvious. The most likely criminal violations, including election crimes and computer crimes, do not qualify as “racketeering activity.” Any crimes involving Russian interference with the election probably also took place over a relatively limited and discrete period of time and might lack the continuity necessary to form a pattern.

As far as cover-up crimes are concerned, obstruction of justice does qualify as racketeering activity, although false statements and perjury do not. If prosecutors found a long-running pattern of obstruction of justice related to the campaign and its aftermath, that might qualify as a pattern of racketeering activity. The enterprise could be the campaign itself or an association in fact of individuals involved in the campaign. The charge would be that the defendants conducted the affairs of that enterprise through a pattern of obstruction of justice designed to thwart investigations by the FBI or Congress.

Why RICO Charges Are Unlikely

RICO’s breadth makes it a potential charge in Mueller’s investigation, particularly if the investigation ends up focusing on international money laundering involving the Trump Organization. On the other hand, if all Mueller finds is a pattern of obstructive conduct, using RICO would seem like an unnecessary stretch. But in the end, regardless of what Mueller uncovers, RICO charges are probably unlikely.

One reason they’re unlikely is that Mueller simply doesn’t need RICO. If you’re prosecuting a gang for a series of state law crimes, or a massive global conspiracy like the FIFA corruption case, RICO can be a useful tool. But in most federal white collar cases, RICO really doesn’t get prosecutors much that they can’t already get through charges such as conspiracy, fraud, and money laundering. RICO’s twenty-year penalty used to be unusual, but now is the norm for more routine federal crimes including mail and wire fraud and obstruction. Other statutes, including money laundering, also allow prosecutors to seek forfeiture. It’s hard to see what RICO would add to Mueller’s already substantial arsenal. Why spend time and effort proving complicated concepts like a pattern of racketeering activity to a jury when you can just focus on the underlying crimes themselves?

A second reason is that all criminal RICO charges must be approved by the Organized Crime and Gang section in the Criminal Division at the Department of Justice. Main Justice requires all federal prosecutors to obtain this approval in order to ensure RICO is used only in cases where it is truly appropriate and necessary. The DOJ guidelines provide that RICO charges will not be approved in cases where other federal statutes can adequately address the misconduct.

The special counsel regulations provide that Mueller is subject to all DOJ rules, regulations, and procedures. That means he would have to seek review and approval of any RICO charges by Main Justice – something Mueller is probably (and understandably) reluctant to do. Mueller does not want the Sessions Justice Department second-guessing his prosecutorial decisions. He also would need to be concerned about leaks that might come out of DOJ if he submitted charges for their review. (This also may be the reason tax crimes were not included in the Manafort indictment, even though they seemed like fairly obvious charges. Charging tax crimes would have required Mueller to seek review and approval from the DOJ Tax Division.)

We have some hints from the Manafort indictment about how Mueller may view these questions. Given the nature of those charges, RICO would have been an easy fit. Prosecutors could readily have charged that Manafort and his co-defendant Richard Gates funded and operated Manafort’s consulting firms (the enterprises) through a pattern of racketeering activity (money laundering) over a number of years. But Mueller chose not to include RICO charges.

In the nearly half-century since RICO was passed, its significance for white collar cases has diminished. Federal prosecutors have more — and usually better — options now. RICO still carries a certain mystique, and Trump’s critics may find the idea of RICO allegations of a grand conspiracy appealing. But no matter what else the special counsel’s investigation turns up, we are unlikely to see a RICO indictment.

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The Criminalization of Politics, Obstruction, and Trump: A Reply to Professor Dershowitz

If you’ve been reading this blog for a while or have been following me on Twitter, you know I’ve been engaged in a bit of a back-and-forth with Harvard Law professor Alan Dershowitz. Dershowitz has emerged as one of the leading critics of the Robert Mueller investigation into the Trump campaign and possible Russian meddling. Professor Dershowitz argues there is no evidence of a crime and no basis for a criminal investigation. More broadly, he believes Mueller’s investigation is the latest example of the criminalization of politics: what he sees as a troubling tendency by both political parties to use criminal law to attack political opponents.

Last week Dershowitz published an op-ed in the New York Times about this issue, and I published a reply in the Washington Post. But the argument about politicization is just the latest in a series of claims Dershowitz has made arguing there is no basis for Mueller’s investigation. In this blog post I’ll review the arguments Dershowitz has been making over the past few months and my responses to those arguments.

The Argument about Collusion

Dershowitz has repeatedly argued that collusion is not a crime.  He claims that if Trump campaign officials colluded with Russians to influence the campaign that might be deplorable but would not be criminal. The remedy for any such misconduct, he says, should be at the ballot box, not in criminal court. Therefore, he concludes, there is no basis for the Special Counsel’s investigation.

This argument is really a smokescreen. It’s true there is no crime called “collusion” — but that’s not what Robert Mueller is investigating. The criminal counterpart to collusion is conspiracy – an agreement to commit some other criminal offense. The Special Counsel likely is investigating a number of potential conspiracies, which could include conspiracy to defraud the United States, conspiracy to violate federal election laws, or conspiracy to engage in computer hacking. He is also investigating a number of potential related cover-up crimes, which could include false statements or perjury by various campaign officials who may have lied about or failed to disclose contacts with Russian individuals. Those already convicted of cover-up crimes include former campaign aide George Papadopoulos, whose guilty plea was unsealed in October, and former National Security Advisor Michael Flynn, who pleaded guilty last Friday.

In this post, Yes, Colluding with Russians to Interfere with the Election is a Crime, I discussed the various conspiracy charges that might be implicated by the allegations in the Russia investigation. In Lying on a Security Clearance Form: The Crime of False Statements, I discussed the criminal implications for individuals such as Jared Kushner or Jeff Sessions if they willfully failed to disclose contacts with Russian nationals when they completed their security clearance applications.

The Obstruction of Justice Argument

Back in June I wrote a post called Trump and Obstruction: What Alan Dershowitz gets wrong. Dershowitz has argued (and continues to argue, including in the most recent New York Times piece) that president Trump could not be charged with obstruction of justice for firing James Comey or trying to interfere with the investigation of Michael Flynn. He points out that the president, as head of the Executive Branch, has the unquestioned power to fire the FBI director and to oversee investigations by the Justice Department. To charge the president with obstruction for these actions, he argues, would be an unconstitutional infringement of the president’s powers. President Trump’s attorney John Dowd has recently adopted this argument, claiming that as head of the Executive Branch the President cannot be charged with obstruction.

Dershowitz believes the president could not be prosecuted for obstruction based on these actions no matter how corrupt his motive. Even if the government could prove beyond a shadow of a doubt that Trump fired Comey because he knew Comey was closing in on him and he wanted to try to thwart the investigation, Dershowitz claims that would not be obstruction. But as I pointed out in that June post, things that one otherwise has a lawful right to do can become criminal obstruction if they are done with corrupt intent. I have a right to destroy my laptop, but if I do it because it’s been subpoenaed by the grand jury and I’m trying to get rid of incriminating evidence, that lawful act becomes obstruction. The same is true of firing the FBI director: the President has the right to do it, but not if he does it with the corrupt intent to obstruct justice.

Dershowitz agrees that if the president took a bribe in exchange for firing Comey, that could be prosecuted. But there is no logical reason for treating obstruction of justice differently. In the bribe scenario, the otherwise lawful act of firing the director becomes a crime due to the corrupt motive that underlies that action. The same is true for obstruction.

Dershowitz argues that to charge Trump with obstruction for firing Comey or seeking to influence the investigation would be to prosecute him for “constitutionally authorized acts.” This amounts to a claim that the constitution authorizes the president to corruptly shut down any investigation into his own potentially criminal behavior. I think Madison would be surprised. Dershowitz has offered no legal authority for the extraordinary proposition that when it comes to the crime of obstruction of justice, the president of the United States is immune and above the law unless he also engages in some additional criminal act.

Whether a sitting president can actually be indicted and prosecuted is a separate question, and I’m not dealing with that here. It may be that if Trump obstructed justice the only appropriate remedy is impeachment, not prosecution. But as long as we live in a country governed by the rule of law, it can’t be the case that the ordinary rules of obstruction of justice law do not apply to the president.

The False Comparisons to Hillary Clinton

The next post where I took issue with Dershowitz was based on his comparison of the allegations against the Trump campaign and allegations involving the Democrats’ involvement in the preparation of the infamous Trump Russian “dossier.” Dershowitz has been using the two cases as examples of what he claims is the criminalization of politics, arguing that neither case is appropriate for a criminal investigation. In my post, Trump, Clinton, and the Russia Dossier: Fallacies and False Comparisons, I pointed out that the two cases involved very different facts and how, while the allegations about Russia and the Trump campaign fully justify a criminal investigation, the allegations about the dossier do not.

This led to an interesting exchange on Twitter between two Harvard Law School titans (and Twitter titans as well), Dershowitz and professor Larry Tribe. Tribe tweeted out my post:

Which led Dershowitz to respond:

Actually that response itself proved my point: Dershowitz is asserting that the two cases are on equal footing and deserve to be treated equally. And just a week earlier on Twitter, Dershowitz had made exactly the comparison that he later denied:

Facts matter. Opponents of the Trump investigation can’t simply say “Well, what about Hillary?” without discussing the facts and allegations involved. The two cases are not at all the same. Based on what we know so far, a criminal investigation into the dossier would be unjustified. As I explained in the post, the same is definitely not true when it comes to Russia and the Trump campaign.

The “Criminalization of Politics” Claim

The latest round took place last week in the pages of the New York Times and the Washington Post. In a Times op-ed titled “When Politics is Criminalized,” Dershowitz repeated many of the same arguments he has been making about the Mueller investigation, as well as his broader argument about political prosecutions in general. He claimed the Mueller investigation is simply one example of what he sees as an increasing practice of using criminal law to attack political enemies. He also repeats some of the arguments discussed and refuted above, about how the president could not be charged with obstruction and how calls for investigations of Hillary Clinton are essentially on the same footing as calls to investigate the Trump campaign.

The Washington Post published my response,  “No, the Mueller probe isn’t politically motivated“.   As I noted in that piece, Dershowitz’s underlying concern is valid, but the facts in this case and in the other examples that he cites simply don’t back him up. It’s true that criminal law should never be used for political purposes, but there’s no evidence that Mueller’s investigation suffers from that flaw.

The Latest Tweet from the President

The arguments about obstruction of justice were fueled this past weekend by the President’s Tweet in the wake of Michael Flynn’s guilty plea, in which he appeared to admit that he knew Flynn had lied to the FBI at the time when former FBI director James Comey says Trump asked him to back off the Flynn investigation. This led to a flurry of activity over the weekend. Critics claimed the Tweet provided solid evidence that the President obstructed justice when he asked Comey to drop the investigation of Flynn. Trump’s attorney John Dowd responded by claiming that he drafted the Tweet, not the president, and in any event that the president can’t be charged with obstruction of justice. 

Dershowitz was back as well, this time on Fox News, claiming the president is immune from obstruction – which led to this presidential Tweet:

No doubt these debates are going to continue and only become more heated as Mueller appears to close in on the president’s inner circle.

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Trump and Obstruction: What Alan Dershowitz Gets Wrong

Special Counsel Robert Mueller reportedly is investigating President Trump for possible obstruction of justice. The investigation is in its early stages, but one prominent legal voice has already decided obstruction charges would be improper. Harvard Law professor Alan Dershowitz has been all over cable news, Twitter, and elsewhere, claiming a president cannot be charged with obstruction for firing the FBI director or trying to shut down an investigation. But Dershowitz’s arguments don’t hold up.

Trump's firing of James Comey may have been obstruction of justice

Former FBI Director James Comey

The Allegations of Possible Obstruction

The facts are familiar by now. Former FBI director James Comey provided more details in his recent testimony before the Senate Intelligence Committee. Among other things, Comey testified about the meeting where President Trump cleared the room and then told Comey he hoped he could drop the investigation of former national security advisor Michael Flynn.

When Comey didn’t drop the Flynn investigation, Trump fired him. Trump later admitted he acted at least in part because of Comey’s handing of the “Russia thing.” He also told Russian officials that firing Comey had relieved pressure Trump was feeling from the Russia matter. Comey himself testified he believes he was fired because of the Russia investigation.

Obstruction of justice occurs when someone corruptly impairs, obstructs or impedes the due administration of justice in an official proceeding, or endeavors to do so. Many observers, including the former U.S. Attorney for the Southern District of New York, believe Trump’s actions could potentially amount to obstruction. (For a deeper dive into the crime of obstruction and how a federal prosecutor would approach the case, see my earlier post here.)

Professor Dershowitz’s Argument

Professor Dershowitz disagrees. He argues that regardless of the reasons for Trump’s actions, they could not legally constitute obstruction of justice. He notes that the president, as head of the executive branch, has the constitutional authority to fire the FBI director. He also has the power, as the FBI director’s boss, to tell the director to halt a particular investigation. In fact, Dershowitz notes, Trump could have called in Comey and said, “I’m pardoning Flynn, you are to stop this investigation right now.”

Because the president has these powers, Dershowitz says, Trump’s actions could not be obstruction. Unlike committing perjury or threatening a witness, firing the FBI director or telling him to stop an investigation is something a president may lawfully do. Dershowitz claims obstruction of justice can never be based solely on a president exercising this constitutional authority as head of the executive branch.

Because the president’s actions were otherwise lawful, Dershowitz says, criminal charges necessarily would be based solely on what was on the president’s mind. And that, he claims, would be improper. In one article he argues, “Even assuming that Trump was improperly motivated in firing Comey, motive alone should never constitute a crime. There should have to be an unlawful act.” Elsewhere he argues that charging Trump would amount to prosecuting the president  “based on what he was thinking rather than what he was doing.”

Dershowitz agrees Trump’s actions may have been unwise and may have political consequences. But absent evidence of some other crime, he says, they could not legally constitute obstruction of justice.

The Issue of Corrupt Intent

Dershowitz’s argument rests on his claim that it’s improper to make something a crime “based on what was in the President’s mind.” But a great deal of criminal law hinges on just that: what was in the defendant’s mind, or what was his intent. Dershowitz is correct that motive alone cannot be a crime. But often it is precisely the defendant’s motive, or intent, that makes an otherwise lawful act potentially criminal.

If I shred my business files because I’m cleaning out my office, that’s not a problem. But suppose I shred the same files because they have been subpoenaed and I don’t want to turn them over to the grand jury. The same action now becomes the crime of obstruction of justice, based on what was in my mind. I acted with corrupt intent, and my otherwise lawful act is now criminal.

Or to take an example from the current prosecution of Senator Bob Menendez: If I take a U.S. Senator on my private jet for a vacation at my Dominican villa because we are old friends, that’s perfectly innocent. If I take him on the same trip to influence him to intercede on my behalf in a dispute I have with the government, now I am acting with corrupt intent and the same actions may become bribery.

Dershowitz himself is inconsistent on this point. He agrees a president could be prosecuted if he lied to the FBI during an investigation, a violation of the False Statements statute, 18 U.S.C. 1001. But whether a false statement is a crime also depends on the defendant’s intent.  If the president made a false statement to the FBI because he simply forgot some relevant facts or misunderstood the question, that would not violate the statute. To be criminal a false statement must be a knowing and deliberate lie. And to prove that intent, a prosecutor would have to prove what was in the president’s mind – the very thing Dershowitz claims is prohibited when it comes to obstruction.

Dershowitz argues that, “A president cannot be charged with a crime for properly exercising his constitutional authority.” I agree – but the key word is “properly.” If the president acts with the corrupt intent to save himself from legal jeopardy, he is not properly exercising his authority.

If Trump tried to thwart an investigation because he feared it might lead to him, that could be obstruction of justice. Contrary to Dershowitz’s claim, this would not amount to charging the president based on his motive alone. It would be based on his actions, which become potentially criminal when carried out with corrupt intent.

The Power to Pardon

Dershowitz also argues the president could have pardoned Flynn and ended the investigation that way. That’s true, but it’s beside the point. The issue then just shifts to whether the pardon was granted for a corrupt reason. The power to pardon does not include power to do so for criminal reasons. Nor does the greater power – the ability to grant a pardon – mean that the lesser power of influencing or halting an investigation may be done corruptly.

Dershowitz apparently believes a president never could be charged with obstruction based on granting a pardon. I don’t agree. Suppose prosecutors could prove a president pardoned someone in return for that person’s explicit promise not to testify against the president? Sounds like obstruction to me. The president can do it, and the pardon would be valid, but that doesn’t mean the president is immune from the legal consequences of his corrupt actions.

Dershowitz has argued, “Obviously if a president accepts a bribe in exchange for a pardon that is corrupt act, without regard to motive or intent.” But you can’t have a corrupt act “without regard to motive or intent.”  It’s the defendant’s intent that makes an act corrupt in the first place. Without corrupt intent, there is no bribe. Granting a pardon in exchange for a bribe could indeed be the corrupt act of bribery — and granting a pardon to head off an investigation that was pointing toward the president could be the corrupt act of obstruction of justice.

Caspar Weinberger was pardoned by President George H.W. Bush

Former Secretary of Defense Caspar Weinberger

The Iran-Contra “Precedent”

Dershowitz has repeatedly claimed (see here and here, for example) there is “precedent” supporting his view, and has challenged his critics to “distinguish that precedent.” He notes that President George H.W. Bush pardoned Caspar Weinberger, his secretary of defense, and five other individuals who were implicated in the Iran-Contra affair. Independent Counsel Lawrence Walsh was furious and suspected Bush may have acted to prevent those individuals from implicating Bush himself.

Dershowitz notes that Walsh did not charge Bush with obstruction of justice for those pardons. He claims this supports his argument that a President can never be charged with obstruction for exercising his constitutional powers, “regardless of his mental state.”

But a failure to bring a case is not “precedent,” at least not in the way lawyers usually talk about it. Lawyers refer to precedent in terms of authoritative court decisions or other formal legal opinions that analyze a particular legal question. A decision not to bring charges is not a precedent that can guide future cases.

For example, suppose I represented a police officer charged with shooting and killing an unarmed civilian. I could not cite as precedent other cases of deadly force where officers were not indicted and argue that means my client cannot be charged. The Independent Counsel chose not to indict Bill Clinton for perjury or obstruction after he survived impeachment. That does not establish a precedent that a president cannot commit those crimes.

Criminal cases are extremely fact-specific. There may be any number of reasons charges are not filed. In the Bush example, maybe Walsh decided, despite his personal anger and disappointment, that the evidence of Bush’s corrupt intent wasn’t there. Maybe Walsh exercised his discretion not to pursue criminal charges because Bush had already lost the election and was leaving office anyway. Or maybe Walsh just blew it and made a bad decision.

In the end, the only thing the Walsh example tells us is that Walsh chose not to file charges on the facts of that case. That decision tells us nothing about whether charges against Trump would be appropriate or legally sound. It certainly doesn’t amount to a precedent that needs to be distinguished.

The Comey Letter to the FBI

Dershowitz has also argued that Comey’s letter to his former colleagues at the FBI after he was fired supports Dershowitz’s arguments. In the letter Comey said, “I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.” Dershowitz claims this proves Comey agrees with him that the president had the absolute right to act as he did. But trying to turn a farewell letter to colleagues into a legal analysis is a stretch. Comey obviously was not opining on the finer points of obstruction of justice law.

During his Senate testimony, when asked whether he thought President Trump had tried to obstruct the Russia investigation, Comey replied that was a matter for the Special Counsel to consider. If he agreed with Dershowitz, one might have expected Comey to reply, “No, Senator, I believe the president had the absolute right to do what he did and that it could never legally amount to obstruction of justice.”

But not even Dershowitz believes Comey’s letter is literally correct. Dershowitz has conceded that if the president took a bribe to fire Comey, that would be a crime. So he doesn’t really believe the president could fire Comey “for any reason.”

To the extent we want to consider Comey’s letter at all, it’s reasonable to conclude Comey simply meant the president can fire the FBI director for any lawful reason. It’s probably a good bet that Comey does not believe it’s OK for the president to fire the FBI director to save himself from being prosecuted.

Nixon told Frost, "If the President does it, that means it's not illegal."

David Frost interviews Richard Nixon

If the President Does It, It’s Not Illegal?

Richard Nixon famously told David Frost that if the president does something, that means it’s not illegal. Dershowitz does not go that far. He agrees the president could not grant a pardon or cancel an investigation in exchange for a bribe, because that would be an independent criminal act. He also agrees a president could be charged with obstruction for committing perjury or telling others to lie. But absent some other criminal act, he argues, the president cannot be charged with obstruction.

If proof of bribery or another criminal act would justify an obstruction charge, it must be because, in Dershowitz’s view, the criminal act establishes corrupt intent. So Dershowitz is not really saying the president could never be charged with obstruction for exercising his executive authority. He’s just arguing about what constitutes adequate proof of corrupt intent. At least where the president is concerned, he apparently believes corrupt intent can only be established by an independently criminal act.

The basis for this claim is unclear. Again, otherwise lawful acts, such as shredding my files, may become criminal if carried out with the intent to obstruct justice. I know of no legal authority for the proposition that obstruction of justice requires proof the obstructive acts also violated another criminal statute. Dershowitz certainly doesn’t point to any such authority. It seems to be some special rule he has created only for the office of the presidency.

Concerns about Vagueness

Dershowitz’s real concern actually appears to be over the breadth and language of the obstruction of justice statute itself. He argues civil libertarians should be worried about prosecutors charging criminal misconduct based on potentially vague terms such as “corrupt intent.”

These are legitimate issues often raised in white collar cases. White collar law deals with broad terms like fraud and corruption that are not well defined. In particular cases there may be valid concerns about vagueness and whether a defendant was truly on notice that his conduct might be criminal.

But Dershowitz isn’t simply saying that because of the breadth of the statute and the president’s position, prosecutors should consider charges only if the evidence of corrupt intent is overwhelming. That would be a legitimate argument. Rather, Dershowitz is claiming that unless the President commits another crime as well, he could never be charged with using the power of his office to obstruct justice, even if he stood on a soapbox on 5th Avenue and confessed that was his purpose.

If Dershowitz wants to argue for reform of obstruction of justice law, that’s perfectly valid. But he shouldn’t use concerns about that law to attempt to carve out some kind of special exemption for the president. It’s not new or unique to have criminal charges hinge on the defendant’s state of mind — it happens all the time. The president is no exception.

Should Trump Be Charged With Obstruction?

I have no idea whether Trump is likely to be charged. And I’m not arguing he clearly obstructed justice. A great deal of investigation remains to be done before the experienced prosecutors in the Special Counsel’s office could make that decision. Any obstruction case would face some significant legal and evidentiary hurdles. It’s not even clear a sitting president can be indicted at all.

Even if an indictment is legally possible, the Special Counsel could exercise his discretion not to bring charges. As I’ve argued before, the appropriate remedies may be political rather than criminal.

But as long as we still believe no one is above the law, it can’t be the rule that the president, and the president alone, is free to wield his otherwise lawful powers in a corrupt way.

At bottom, that’s the argument Dershowitz is making — and that’s why he’s wrong.

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Lying on a Security Clearance Form: The Crime of False Statements

A number of Trump administration figures are under investigation for having contacts with Russian officials. Former National Security Advisor Michael Flynn allegedly had repeated contacts with the Russians during the Trump campaign and transition. Flynn was forced to resign and has asserted his Fifth Amendment right to remain silent in response to the ongoing inquiries.

At his confirmation hearing Attorney General Jeff Sessions denied having any contact with Russian officials, but he later admitted to having several meetings with the Russian ambassador. This led to allegations that Sessions may have committed perjury during his hearing testimony.

Most recently there were reports that Trump’s senior advisor and son-in-law Jared Kushner allegedly met with Russian officials about setting up some back channel communications through the Russian embassy. Kushner also is alleged to have had multiple contacts with other Russians, including a Russian banker closely tied to Russian intelligence.

The FBI, Special Counsel, and several Congressional committees are now investigating these various contacts. Some may turn out to be criminal, others may turn out to be simply unwise, and others may be perfectly innocent. But most have one thing in common: the administration officials who had the Russian contacts apparently failed to disclose them when they applied for a security clearance.

Even innocent contacts could result in criminal prosecution if people lied about them or failed to disclose them when required. The charge would be false statements, a key workhorse in the white collar crime stables.

False statements on a security clearance form may be a crime

SF-86: Questionnaire for National Security Positions

The Disclosure Requirement: Form SF-86

All those seeking a security clearance and access to classified information are required to complete a Standard Form 86, or SF-86. This lengthy (over 100 pages) questionnaire is painfully familiar to many government employees. The federal government uses the information in the SF-86 to conduct a background investigation and determine whether access to classified information is appropriate.

The SF-86 requires you to report detailed information about your personal background, employment history, education, marital status, family members, places you have lived, travel, and much more. It also asks about foreign contacts and foreign activities.

In particular, question 20B.6 asks whether the applicant has had any contact at all with any foreign governments or their representatives in the past seven years. If the answer is “yes,” the applicant must provide detailed information about those contacts.

All high-level members of the new administration would have filled out an SF-86. The allegation concerning Kushner, Flynn, Sessions, and others is that when completing the form they failed to report their various meetings with Russian officials.

The Relevant Statute: False Statements

The instructions for the SF-86 include the following warning:

The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to five (5) years imprisonment.

Many of us have seen similar warnings on other government forms. But what exactly is title 18, section § 1001, and what does it require the government to prove?

False statements, 18 U.S.C. § 1001, makes it a crime to knowingly and willfully –

1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;

2) make any materially false, fictitious, or fraudulent statement or representation; or

3) make or use any false writing or document knowing that it contains any materially false, fictitious or fraudulent entry,

in any matter within the jurisdiction of one of the three branches of the federal government.

The false statements statute is extremely broad. It potentially applies to virtually any lie to the federal government. Unlike perjury, you don’t have to be under oath. The government does not need to be harmed or to have relied on your statement in any way. The lies may be written (as on an SF-86) or verbal.  (Martha Stewart and Scooter Libby were both convicted under 1001 for lying during FBI interviews.)

Sometimes the false statement itself is part of the central misconduct in a case. If I lie on an application for a government grant or contract, the lie is an integral part of my criminal scheme to cheat the government out of something. False statements may be one of the statutes used to prosecute such a scheme, along with mail or wire fraud or other appropriate charges.

But sometimes a violation of section 1001 falls into the category of a cover-up crime, similar to perjury or obstruction of justice. In such a case the false statement is a secondary offense that conceals some other underlying misconduct. That’s the allegation in the investigations involving Trump officials. The claim is they lied on the SF-86 in order to conceal underlying contacts with the Russians that may have been improper — or at the very least embarrassing.

False Statements on a Security Clearance Form

To convict under section 1001, the government must prove the following elements beyond a reasonable doubt:

1) The defendant made a false statement, used a false document or writing, or concealed facts through a trick, scheme, or device;

2) The false statements or concealed facts were material;

3) The statement or concealment took place in a matter within the jurisdiction of one of the three branches of the federal government; and

4) The defendant acted knowingly and willfully.

Let’s consider how these elements would be met in a hypothetical case involving failure to disclose foreign contacts on an SF-86.

1) False Statement, Writing, or Concealment

The first requirement is that the statement be false. That may seem a bit obvious. But as it is with the related crime of perjury, the requirement of actual falsity is important. It means there is no room for ambiguity or uncertainty. If a question or answer is open to different interpretations, a statement that initially appears false may not be.

The statute prohibits making false statements and using false documents. The SF-86 asks whether the applicant has had any contact with foreign representatives in the past seven years and asks the applicant to check “yes” or “no.” Checking “no” could be a false statement under section 1001(a)(2) if in fact such contacts had occurred.

Section 1001(a)(1) also prohibits concealing material facts through a “trick, scheme, or device,” even in the absence of outright lies. This portion of the statute likely would also come into play in a case involving failure to disclose meetings with foreign officials. The SF-86 requires the applicant to list the details about any foreign contacts. Failing to list those meetings could qualify as concealment of material facts.

Because there is no general duty to speak to the government, the concealing material facts theory may be used only when the defendant is under a duty to disclose the facts in question. In this case the obligation to disclose is readily found in the requirements of the SF-86 itself. Those who choose to complete the application are required to provide all relevant information.

2) Materiality 

As with the related crime of perjury, the false statements or concealed facts must be material. The law does not punish lies that are trivial or irrelevant.

Materiality is defined very broadly. The statement need only have the potential to affect the decision of the agency to which it is made. There is no requirement that the statement actually affected any outcome, that it was believed, or that the government relied on it in any way. In other words, materiality is judged based on the nature of the statement, not on any actual impact that it had.

In this case materiality would be clear. A primary purpose of the SF-86 is to reveal any potential foreign entanglements that might pose a security risk. Information about contacts with Russian officials, especially so close to the election, would undoubtedly have the potential to affect the decisions of those doing the background investigation. Lying about or concealing that information could therefore violate the statute.

3) Within the Jurisdiction of the Federal Government  

The statement or concealment also must be in a matter within the jurisdiction of one of the three branches of the federal government. “Jurisdiction” is broadly defined. It simply means the agency or office to which the statement is made has some authority to act on the matter in question.

This requirement serves to establish a basis for federal criminal jurisdiction. The lies must be in connection with business of the federal government. Lying to your boss, or your neighbor, or even to a state agency is generally not going to fall within the statute.

In this case the jurisdiction requirement would be easily satisfied. The SF-86 is submitted to the Executive branch, which has the authority to act on the information and investigate whether to grant a security clearance. Any statements or concealment on the SF-86 are plainly in a matter within the jurisdiction of the Executive branch.

4) Knowing and Willful 

As with so many white collar offenses, the intent requirement is where the rubber meets the road. In any case involving an allegedly false SF-86, the key issue would be proving the defendant’s state of mind.

The knowing and willful requirement means the lies or concealment must be intentional and done with a bad purpose. The statute does not apply to mistakes or inadvertent failures to disclose. It doesn’t apply if a person was simply confused or misunderstood the question. It doesn’t apply if he failed to disclose the relevant information because he forgot it.

Courts generally interpret the “willful” requirement to mean the defendant knew not only that the statement was false but also that making the false statement was unlawful. That would not be much of a hurdle in an SF-86 case. The form itself warns that false statements or concealment can be a criminal offense. Any applicant would certainly know that foreign contacts are critical information when it comes to granting a security clearance.

The Defense: Lack of Criminal Intent

Attorney General Jeff Sessions

At this point it may be undisputed that SF-86 forms filed by various Trump officials are inaccurate. But filing a false form is not automatically a crime. The issue will be why the information was missing. The government would bear the burden of proving beyond a reasonable doubt that a defendant deliberately sought to lie about or conceal the foreign contacts.

Attorney General Sessions has claimed officials conducting his background investigation told him he did not need to report some of his contacts with foreign officials. If this is true, it could be a defense. It suggests Sessions did not act willfully because he did not believe failing to include that information was unlawful. Even if the advice were incorrect, that would not matter if Sessions believed he was properly filling out the form.

Jared Kushner apparently has claimed he forgot about some of his meetings with Russian officials. If he omitted foreign contacts because he honestly forgot about the meetings, that too would be a defense. Again, it demonstrates a lack of intent. If he did not recall the meetings when he completed the form, then he did not willfully conceal the information.

Michael Flynn may also claim he forgot about various Russian contacts. Or he may claim he did not believe they needed to be disclosed. His position is unclear at this point, because he has declined to speak with investigators unless he is granted immunity.

To prove a crime the government would need to establish that a defendant was not forgetful or acting on outside advice but was deliberately and wrongfully trying to conceal the information. Absent some direct evidence (such as statements by the defendant), the proof may consist of circumstantial evidence that ultimately makes innocent explanations completely implausible.

Whatever the outcome of the investigation into the Russian contacts themselves, the potential false statements are a separate investigative track. Even if the underlying contacts end up being perfectly innocent, lying about those contacts could be criminal.

People in D.C. are familiar with the maxim that sometimes the cover-up is worse than the original misconduct. The Independent Counsel will determine whether that’s the case here.

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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.” Comey himself confirmed this account of the meeting during his testimony before the Senate Intelligence Committee on Jun 8.

There are additional facts as well. 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.

Doe an FBI investigation alone qualify as an “official proceeding” that may be obstructed? The courts and legal authorities are divided, but the better answer appears to be no. 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.

Even if an FBI investigation is not a “proceeding,” that does not mean Trump is necessarily off the hook. Removing the FBI director might have some tangential effect on the ongoing Congressional investigations, which do 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 was 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 unlike a case where a defendant threatened a witness or fabricated evidence, 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 evidence 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. This would make proving corrupt intent even more challenging. 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 private 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. During his Senate testimony Comey said he interpreted the President’s statement as a directive to him to drop the case. That would certainly be a significant fact in any obstruction case.

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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Judge Gorsuch, White Collar Crime, and the Legacy of Justice Scalia

The confirmation battle over Neil Gorsuch, President Trump’s pick to fill the vacant seat on the U.S. Supreme Court, promises to be ugly. All aspects of his record will be thoroughly dissected — and likely distorted — by both political parties. Looming over the proceeding is Democratic anger over the Merrick Garland nomination and the threat of Republican Senators to invoke the “nuclear option” to break any Democratic filibuster. It’s destined to be one of those political knife fights that reminds everyone why they hate Washington.

Partisans on both sides will be trying to predict how a Justice Gorsuch might rule on any number of hot-button issues. But here at Sidebars we are particularly interested in how Gorsuch’s presence on the Supreme Court might influence the law of white collar crime. So I spent some time this week reading opinions written by Judge Gorsuch on the 10th Circuit Court of Appeals in cases involving white collar offenses such as mail and wire fraud, public corruption, obstruction of justice and money laundering, to see if I could glean anything from those decisions.

I didn’t find anything particularly remarkable. Most of the white collar cases where Judge Gorsuch wrote the opinion for a three-judge panel ruled in favor of the government, but that’s true of most criminal appeals. Most of the decisions were unanimous. That’s also not unusual, but at least it suggests a judge who generally colors within the lines of established precedent and is not a bomb-thrower writing dissents advocating extreme positions.

One thing I definitely learned is that Judge Gorsuch is indeed a terrific writer, as many others have noted. His opinions are clear, concise, and free of legal jargon. They are a pleasure to read, which is saying something when it comes to judicial opinions. In that regard he reminds me of Justice Kagan, in my view currently the best writer on the Court. That’s something I really admire — although I guess if you fear a Justice Gorsuch is going to gut your fundamental liberties it’s cold comfort to know he’ll do it with great style and clarity.

In any event, it appears unlikely that any of Judge Gorsuch’s opinions in white collar cases will be particularly controversial or a focus of his confirmation hearing. But that doesn’t mean there is nothing we can learn about how Justice Gorsuch might approach such cases at the high court.

Those who have studied or worked with Judge Gorsuch and know him best describe him as a judge in the mold of Antonin Scalia, the Justice whose seat he would assume. The opinions and other materials I reviewed certainly support that characterization. And if Justice Gorsuch does follow in the footsteps of Justice Scalia when it comes to criminal law, it could lead to some interesting and potentially surprising results.

Antonin_Scalia_Official_SCOTUS_Portrait

Justice Scalia’s White Collar Legacy

When it comes to Justice Scalia and criminal law, it’s complicated. Although conservative, he was definitely not a “hanging judge” ruling against criminal defendants at every opportunity. On the contrary, Scalia’s strict approach to statutory and constitutional interpretation often resulted in decisions that favored criminal defendants – and often led him to side with some of the most liberal members of the Court.

In constitutional law, Justice Scalia’s originalist approach made him suspicious of expansive notions of government power and protective of the rights of criminal defendants embodied in the text of the Constitution. In areas such as the right of defendants to confront witnesses against them (for example, Crawford v. Washington), the right to a jury trial (Blakely v. Washington), and the right to be free from unreasonable searches and seizures (Florida v. Jardines and Kyllo v. United States, for example), Scalia was a powerful voice warning against government encroachment on these fundamental constitutional liberties. On the other hand, when it came to doctrines he considered judicial inventions not found in the text of the Constitution – such as the exclusionary rule and right to Miranda warnings – he was much less sympathetic.

White collar cases more often involve the interpretation of statutes, not the Constitution. And white collar statutes are notorious for being broad and somewhat vague, using sometimes fuzzy terms such as “fraud” that are not otherwise defined. Justice Scalia authored a number of significant white collar opinions and dissents. His strict textualist approach generally led him to read white collar statutes narrowly. He was skeptical of prosecutors’ attempts to fashion expansive theories of criminal liability not directly spelled out in the statutes. Some Justices are much more willing to hold that courts should flesh out the parameters of broadly-worded criminal laws; Scalia insisted that crimes had to be specifically defined by Congress, not by judges.

For example, Justice Scalia was a long-time critic of a popular species of mail and wire fraud known as honest services fraud. Frequently used in prosecution of state and local corruption, it charges that victims were defrauded not of money or property but of their intangible right to the honest services of a politician or other individual who owed them a duty. Justice Scalia maintained throughout his career that the idea of “honest services” was too amorphous to support criminal liability and failed to provide adequate notice about what conduct was prohibited.

In Skilling v. United States in 2010 the Court responded to vagueness concerns by narrowing honest services fraud liability to cases involving bribes and kickbacks. Justice Scalia wrote a separate opinion arguing that the Court should go further and declare the honest services fraud statute unconstitutionally vague in all circumstances. (He even referred to it as “so-called honest services fraud,” a locution that President Trump might appreciate.)

In another leading mail fraud case, Schmuck v. United States (yes, that’s the real name), the issue was whether the mailings proved by the prosecution actually furthered the scheme to defraud as required by the statute. The majority adopted a broad reading of the “in furtherance” requirement and upheld the convictions. Justice Scalia dissented, criticizing the prosecution for what he deemed an overly-expansive view of the mail fraud statute. His opinion arguing that the defendant’s convictions should be reversed was joined by Justices Brennan and Marshall, two of the most liberal Justices of the 20th century.

Justice Scalia similarly favored a narrow reading of a public corruption theory called extortion under color of official right under the Hobbs Act. In 1992 in Evans v. United States, the majority held that extortion under color of official right was basically equivalent to bribery. Justice Scalia joined a dissent by Justice Thomas arguing that bribery and extortion are distinct crimes and that the majority opinion wrongfully resulted in a vast expansion of federal criminal law and the power of federal prosecutors.

Of course, strict interpretation of the statute sometimes meant the defendant lost. For example, Brogan v. United States involved the false statements statute that criminalizes lying to the government about material matters. Lower courts had created an exception to the statute, known as the “exculpatory no,” holding that prosecution could not be based on a defendant’s mere denial of guilt. Justice Scalia wrote the majority opinion holding the text of the statute contains no such exception and stating “[c]ourts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so . . . .” (He also noted the defendant’s concession that “under a ‘literal reading’ of the statute he loses.” If you had made that concession and then saw that Justice Scalia was writing the opinion in your case, you knew it was not going to be a good day.)

Recently in Yates v. United States the defendant was charged with obstruction of justice, a twenty-year felony, for throwing overboard some undersized fish that were evidence he had violated fishing regulations. During oral argument Justice Scalia expressed outrage that the government had brought such a case. But in the end he refused to join the five-Justice majority reversing the conviction on the questionable ground that fish were not “tangible objects” within the meaning of the law. Instead he joined with Justice Kagan in dissent, arguing that the plain wording of the statute compelled a ruling in favor of the government. He clearly thought the prosecution was misguided, but did not believe the solution was for the Court to adopt a strained interpretation of the statute that was contrary to its plain language.

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Judge Gorsuch and White Collar Crime

Would Justice Gorsuch channel Justice Scalia when it comes to white collar crime? It’s always a bit dicey trying to predict how a judge would behave on the Supreme Court based on his appellate opinions. Appellate judges, of course, are bound by Supreme Court precedent, so they generally don’t have the same freedom and opportunities to decide novel legal questions. But there is reason to believe Justice Gorsuch’s approach would indeed look a lot like Justice Scalia’s.

Judge Gorsuch shares Justice Scalia’s belief in strict construction of the Constitution according to the intent of its framers. In a widely-quoted concurrence in Cordova v. City of Albuquerque, he wrote:

Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams . . .  but a carefully drafted text judges are charged with applying according to its original public meaning.

Judge Gorsuch also appears to share the concerns of Justice Scalia about overcriminalization and sweeping criminal statutes that may place too much power in the hands of prosecutors. In a law review article in 2010 Judge Gorsuch wrote: “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

Judge Gorsuch’s strict textualist approach to statutory interpretation has occasionally led him, as it did Justice Scalia, to rulings that narrowly interpret criminal statutes and favor criminal defendants. One example involves a statute that makes it a crime for an individual with a felony conviction to possess a firearm, 18 U.S.C. § 922(g)(1). The 10th Circuit has agreed with the majority of courts of appeal that the government in such a case needs to prove only that the defendant knew he possessed a gun and does not need to prove the defendant knew he had a felony conviction.

Judge Gorsuch disagrees. In a classic Scalia-esque statutory interpretation argument, he has argued that the plain language of the statute requires the government to prove both – an interpretation that, if adopted, would favor defendants and place a heavier burden on the government. In one of the cases, United States v. Games-Perez, notice Judge Gorsuch’s language in his concurrence expressing disagreement with his colleagues:

Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case. . . .

I recognize that precedent compels me to join the court’s judgment. But candor also compels me to suggest that we might be better off applying the law Congress wrote than the one [the court’s earlier decision] hypothesized. It is a perfectly clear law as it is written, plain in its terms, straightforward in its application. Of course, if Congress wishes to revise the plain terms of [the statute] it is free to do so anytime. But there is simply no right or reason for this court to be in that business.

Those final two sentences could have been lifted straight out of a Justice Scalia opinion: the statute says what it says, and if there’s a problem it is up to Congress to fix it, not the court.

But what a marked contrast to the writing style of Justice Scalia, who was famous for disagreeing with his colleagues in the most sarcastic and acerbic terms. In addition to being a gifted writer, Judge Gorsuch displays much more of a traditional judicial temperament than the man he would replace.

Later, dissenting from a denial of a rehearing en banc in the same case, Judge Gorsuch wrote a impassioned defense of the right of criminal defendants to be convicted only if the government proves every element of the offense: “There can be few graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.”

Another 10th Circuit case, United States v. Makkar, involved a prosecution under the analogous drug act, which criminalizes selling substances that mimic a listed controlled substance. In another pro-defendant decision, Judge Gorsuch reversed the convictions and held that the plain language of the statute requires the government to prove the analogous substance had the same chemical structure as the controlled substance, not merely that it had the same effects on the user.

In addition to strictly interpreting criminal statutes, Judge Gorsuch, like Justice Scalia, has a history of holding prosecutors’ feet to the fire and insisting they play by the rules. For example, in United States v. Farr, a tax fraud case, Judge Gorsuch ruled in favor of the defendant and held that prosecutors had improperly convicted him under a theory of tax fraud different from the one that was charged in the indictment.

In a case that might be of interest in the current political environment, Judge Gorsuch also wrote the opinion in United States v. Hasan, reversing the perjury conviction of a Somali refugee. He ruled the trial court had erred by finding the defendant was not entitled to an interpreter when testifying in the grand jury. This was under the extremely deferential “plain error” standard of review, and it would have been easy for an appellate judge simply to defer to the judgment of the trial court. If opponents try to portray Judge Gorsuch as a cold-hearted conservative who cares nothing about the most vulnerable among us, we might see this opinion trotted out in response.

Overall, Judge Gorsuch’s opinions related to criminal law are largely uncontroversial and closely adhere to governing precedent. He definitely takes a strict approach to the interpretation of texts. He does not appear to be results-oriented and will not hesitate to rule against the government and in favor of a criminal defendant if he believes that is required. His approach to criminal law in general and white collar crime in particular does seem to be very similar to Justice Scalia’s.

At least as far as criminal law is concerned, Democrats thinking about opposing his nomination should probably consider they could do a lot worse.

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White Collar Crime, Prosecutorial Discretion, and the Supreme Court

Does the Supreme Court still believe in prosecutorial discretion? A string of cases over the past few years has to make you wonder.

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.

On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.

On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play.

For federal prosecutors, policies governing how they should exercise this discretion are set forth in the U.S. Attorneys’ Manual, and in particular in the Principles of Federal Prosecution. The Principles contain detailed guidance concerning when to bring charges, what kind of charges to bring, and how to handle criminal cases, in order to “promote the reasoned exercise of prosecutorial discretion by attorneys for the government.” USAM 9-27.110.

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Prosecutorial Discretion and White Collar Crime

Prosecutorial discretion is particularly important in white collar crime. With non-white collar, or “street” crimes, the parameters of the offense tend to be more clearly defined and charging decisions often are more black and white. If there is a body on the street with nine bullets in it, you pretty clearly have a homicide. If authorities can identify who did it, that person will almost certainly be charged. The prosecutor is not likely to say, “Due to our limited resources and other priorities, we’ll take a pass on this one and let the victim’s family file a civil suit instead” – not if the prosecutor wants to keep her job, anyway.

But white collar crime is full of gray areas. White collar prosecutors deal with sometimes nebulous concepts such as “fraud” and “corruption,” and white collar statutes are written in notoriously broad and general terms. As a result, it often falls much more to the prosecutor to determine whether something is a crime at all and to decide what kind of conduct merits a prosecution.

For example, suppose a hedge fund goes belly-up, and the investors who lost their money claim they were misled about their investment. Was it fraud, or was it merely aggressive – maybe even sleazy – sales tactics followed by incompetence, mismanagement, or just bad luck? Unlike a homicide, robbery, or drug case, at the outset it may not be clear that a crime has been committed. A prosecutor might well conclude, “If I investigated this for two years, perhaps at the end I would have a provable criminal fraud case – but perhaps not. Given my resources and priorities, I’m going to focus on other cases and let the SEC and private plaintiffs pursue civil and administrative penalties in this one.”

Given these potential gray areas, what’s the best way to deter and prosecute white collar crime? Imagine two different regimes. In System #1, Congress drafts broad statutes that proscribe conduct such as fraud in general terms, in order to encompass as much potentially criminal conduct as possible. It is left to the Executive Branch, through prosecutors, to enforce those statutes and determine which cases to pursue – with that discretion tempered, of course, by the oversight of the courts.

In System #2, Congress tries to write very precise and detailed statutes that are as specific as possible in defining the prohibited conduct. Such white collar statutes would leave fewer gray areas and less room for prosecutorial discretion – in other words, they would be more like street crimes. The downside of such a system would be that it necessarily creates loopholes: the more precisely you define criminal concepts like fraud, the greater the opportunity for individuals engaged in what should be criminal conduct to skirt the law’s prohibitions.

Historically, white collar criminal law has been closer to System #1: broad statutes prohibit things like fraud or corruption, and prosecutors are entrusted to exercise their discretion to determine how to apply those laws. But in a series of decisions over the past few years, the Supreme Court has signaled it is becoming increasingly uncomfortable with such a system. These decisions have limited several significant white collar statutes, moving us closer to System #2 – although with laws narrowed by the Court rather than by Congress. In the process, the Court has removed discretion from the hands of prosecutors while also making it more difficult to prosecute some criminal conduct.

The Supreme Court Limits Prosecutorial Discretion

The first such case was Skilling v. United States in 2010. Skilling involved the proper interpretation of 18 U.S.C. § 1346, which prohibits schemes to deprive another of the “intangible right of honest services.” Honest services fraud, a species of mail and wire fraud, has been around for decades. Most cases of honest services fraud have involved relatively straightforward allegations of corruption such as bribery, kickbacks, and conflicts of interest.

But prosecutors in some cases stretched the boundaries of the theory, using honest services fraud to prosecute, for example, a university professor who helped students plagiarize work to obtain degrees to which they were not entitled; an IRS employee who improperly browsed through certain tax returns but did nothing with the information; state officials who awarded public sector jobs based on political patronage; and a state official who failed to disclose a potential conflict of interest when state law did not require disclosure. Some of these schemes seemed wrong or dishonest but were far from traditional criminal corruption. The confusion over what actually qualified as a deprivation of honest services led Justice Scalia to argue in 2009 that the law was in a state of “chaos.”

The Supreme Court finally attempted to bring some order out of this chaos in Skilling. The defendant, former Enron CEO Jeff Skilling, argued that the honest services statute should be struck down as unconstitutionally vague, but the Court disagreed. Instead, it limited the law to what it deemed the core of honest services fraud: cases involving bribery and kickbacks.

The holding in Skilling dramatically narrowed the scope of honest services fraud. This successfully removed prosecutors’ ability to use the theory in innovative ways to charge more unusual schemes. But the limitation also created safe harbors for certain conduct, such as self-dealing by elected officials, that is plainly corrupt but may no longer be charged as a violation of honest services.

In 2014, the Supreme Court decided Bond v. United States. (Although not really a white collar case, Bond is instructive as part of the same trend at the Court.) 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 only a slight skin irritation on the woman’s thumb that was easily treated with cold water. Federal prosecutors subsequently charged Bond using a felony statute that prohibits the use of chemical weapons and carries a penalty of “any term of years” in prison.

The Court ultimately held that the statute did not apply to Bond’s conduct. But an undercurrent of the case was the Court’s obvious concern over the government’s decision to apply a federal law aimed at preventing the horrors of chemical warfare to such a trivial incident. During oral argument, Justice Kennedy told the Solicitor General that it “seems unimaginable that you would bring this prosecution.” Justice Alito remarked, “If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted.”

This trend continued in 2015 with Yates v. United States. Yates was a commercial fisherman working in the Gulf of Mexico. A fish and wildlife officer boarded his boat to conduct a routine inspection and ended up citing him for having several dozen red grouper on board that were slightly smaller than the legal limit – a civil violation. The officer told Yates to keep the fish until he returned to port, where they would be seized and destroyed. Once the officer left his boat, however, Yates instructed a crew member to throw the undersized fish overboard and replace them with larger ones.

When this ultimately came to light, prosecutors charged Yates with three crimes including obstruction of justice under 18 U.S.C. § 1519, a twenty-year felony. That law prohibits the destruction of “tangible objects” in an effort to obstruct a federal investigation. Captain Yates argued before the Supreme Court that fish were not “tangible objects” within the meaning of this statute. The Court ultimately ruled in his favor, but only by adopting what I believe was an unnatural and strained interpretation of the law.

But Yates is actually more significant for what it revealed about the Court’s views on prosecutorial discretion and charging decisions. During oral argument, the Justices were clearly disturbed by the application of a twenty-year felony to this fish-dumping episode. Justice Scalia asked what kind of “mad prosecutor” would charge Yates with a twenty-year offense, and sarcastically suggested perhaps it was the same prosecutor who had charged Bond with a chemical weapons violation. Later in the oral argument Justice Kennedy remarked, “It seems to me that we should just not use the concept [prosecutorial discretion] or refer to the concept at all anymore.”

The Court’s skepticism about prosecutorial discretion surfaced again this past spring in McDonnell v. United States. In reversing the corruption convictions of the former Virginia governor, the Court adopted a narrow definition of “official act” for purposes of federal bribery law. At oral argument and in its opinion the Court imagined federal prosecutors targeting elected officials for simply attending a lunch where a supporter bought them a bottle of wine, or for attending a ballgame as the guest of homeowners who earlier had sought the official’s help.

The narrow definition of “official act,” the Court concluded, was necessary to prevent politically-motivated prosecutions and the criminalization of routine political courtesies. But critics of the Court’s decision – including me – argue that the result is to shield a great deal of corrupt conduct that is precisely what the law of bribery aims to prevent.

The Future of Prosecutorial Discretion

In these recent cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors. A moment during the Yates oral argument is particularly illuminating. The Justices asked Assistant Solicitor General Roman Martinez what guidance prosecutors followed when deciding what kind of charges to bring, and that led to this exchange:

MR.MARTINEZ:  Your Honor, the ­. . . my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge ­­once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­the offense that’s the most severe under the law. That’s not a hard and fast rule, but that’s kind of the default principle.  In this case that was Section 1519.

JUSTICE SCALIA:  Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are.  I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

MR. MARTINEZ:  Your Honor, that’s ­­. . .

JUSTICE SCALIA:  Or ­­how much coverage I give to severe statutes.

MR. MARTINEZ:  That’s ­­– that’s not what we were saying.  I think we’re not always going to prosecute every case, and obviously we’re going to exercise our discretion. . . .

As Martinez attempted to point out, the real-world exercise of prosecutorial discretion is far more nuanced than Justice Scalia suggested. It’s true that the Principles of Federal Prosecution provide as a general rule – as they have for decades – that once a decision to bring charges is made a prosecutor generally should charge “the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.” USAM 9-27.300. But the Principles also recognize the need for prosecutors to consider the nature and circumstances of a particular case, the purpose of criminal law, and law enforcement priorities. What charges are “consistent with the nature of the defendant’s conduct” is also a matter of judgment and discretion. And of course considerable discretion also is involved earlier in the process, when deciding whether to bring charges at all.

But this exchange suggests the Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.

Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound. The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.

But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions. One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well. If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.

It’s particularly inappropriate for the Court to limit these statutes based on hypotheticals that have no basis in reality, as it did in McDonnell. When we start seeing widespread prosecutions of politicians for accepting legal campaign contributions and attending Rotary Club breakfasts, then maybe we can talk about the need to curb prosecutorial discretion. But simply because we can imagine a parade of horribles based on the broad terms of a white collar statute does not mean that prosecutors are actually marching in that parade.

At the McDonnell oral argument, Justice Breyer noted that narrowing the definition of bribery might mean that a certain amount of corrupt conduct will go unpunished. Unfortunately, for now that appears to be a risk the Court is willing to take.

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