The Rush to Criminal Remedies

A series of recent prosecutions has me thinking about the proper role of criminal remedies. There seems to be a trend in recent years for the public – and some prosecutors – to leap to criminal prosecution as the first option in response to various kinds of misconduct.  Don’t get me wrong — as a former prosecutor I have no problem with criminal remedies when appropriate. But as I tell my students on the first day of class: there’s a lot of conduct that is immoral, unethical, or just downright sleazy, but isn’t criminal and doesn’t need to be. I think we may be losing our sense of when prosecution is the right response and when some alternative, less severe sanction might be appropriate.

The Gray Areas

 In my white collar crime class we routinely discuss the availability of other remedies for conduct that potentially could be prosecuted. This is particularly important in white collar criminal law. After all, if you have a violent crime like a homicide or robbery, there’s little question that criminal prosecution is the appropriate response. We’re not going to respond to a homicide by saying, “Well, let’s just let the victim’s family file a civil suit.”

White collar cases, by contrast, often involve misconduct that falls into a gray area. The cases involve fuzzier criminal concepts like fraud and corruption, where criminality may be less clear-cut. There generally is no victim of physical violence; most harms are economic. For such misconduct there is usually a wide range of alternative remedies available: civil penalties and fines, private civil lawsuits, administrative sanctions, professional discipline (loss of professional licenses or loss of a job or career), even just the sanction of public disgrace and humiliation. In cases involving political misconduct, voters can respond at the ballot box by throwing the offender out of office.

Non-criminal remedies and sanctions almost always are much more efficient. Criminal sanctions are cumbersome and difficult to impose. Grand jury investigations and trials are time consuming and resource-intensive. They require the government to meet the highest burden of proof in the law: guilt beyond a reasonable doubt, found by a unanimous jury. By using civil proceedings the government may obtain many of the same remedies faster and with a lower burden of proof. Society as a whole often may be better served by resolving much misconduct with non-criminal sanctions.

Criminal prosecution should be reserved for the most extreme misconduct, the most severe violations of society’s rules. Criminal convictions may result in the harshest sanctions society can impose: the loss of liberty. Many other types of penalties are available in both civil and criminal proceedings, but only in a criminal case can the offender be sent to jail. The hammer of criminal penalties therefore should be reserved for those cases that truly deserve it.

There is a lot of play in the joints with concepts like fraud and corruption, and white collar statutes are notoriously broad. It is far easier to stretch those statutes to argue they should apply to particular misconduct that, unlike a homicide or burglary, on its face may not be obviously criminal. That’s why prosecutorial discretion plays such a crucial role in white collar crime. In a white collar case it’s often unclear whether criminal sanctions are necessary and appropriate. Making that decision requires good judgment and the sound exercise of discretion.

A number of recent cases and investigations have me questioning whether at least some prosecutors are losing sight of these principles. In some cases, I don’t think the conduct was criminal at all. With others, even if it’s possible to come up with a creative criminal theory, I think the misconduct would have been better addressed through non-criminal remedies.

The NCAA Corruption Case

Exhibit one is the NCAA corruption case, which I’ve written about several times (on the blog here and here, and in the Washington Post here). The defendants are aspiring sport agents and representatives of the sportswear company Adidas. They engaged in a scheme to pay the families of star high school athletes $100,000 or more in exchange for an agreement to attend and play basketball at particular universities whose athletic programs were sponsored by Adidas. They were convicted of fraud in New York and are currently appealing to the Second Circuit Court of Appeals.

The remarkable thing about this prosecution is that in the absence of the NCAA rules, there would be no fraud theory at all. There was nothing illegal about the payments; it’s not a crime to pay someone to induce them to attend a particular school. The defendants did not want to harm the universities – just the opposite. They would only succeed and profit if the universities did as well. And the evidence indicated that the coaches at the universities knew this scheme was going on, or at the very least willingly looked the other way.

But the payments violated NCAA rules, which prohibit college athletes from receiving any kind of compensation. Having ineligible athletes on their rosters exposed the universities to potential sanctions from the NCAA – a private organization that the universities voluntarily joined. Prosecutors charged that the defendants defrauded the universities by secretly paying the athletes, thus exposing the universities to those potential sanctions.

It’s a very odd fraud case where the defendant has no intent to harm the victim and the senior representatives of the supposed victim are in on the scheme. It’s even more odd when violating the rules of a private, voluntary association through otherwise lawful behavior can be leveraged into a criminal fraud theory.

This did not need to be a criminal case. The NCAA needs to clean house, but federal prosecutors don’t need to do it for them. People shouldn’t go to jail for violating the rules of a private organization by behavior that was otherwise lawful.

Appropriate sanctions for violating the NCAA rules: the Adidas representatives lose their jobs. The universities get fined or otherwise disciplined by the NCAA. The coaches who participated get fired. Maybe Adidas loses the right to sponsor some athletic programs. And players who took part in the scheme are declared ineligible for NCAA play – and probably go on to play in the NBA and make a fortune.

The Varsity Blues Case

 The college admissions scandal known as “Varsity Blues” is more complicated, because the dozens of different defendants are culpable to different degrees. I’ve written about this case on the blog here and here and in the Post here. The case features two different kinds of schemes involving parents cheating to help their students gain admission to elite universities. The mastermind at the center of both schemes was college counselor Rick Singer.

In the entrance exam scheme, parents paid to have someone correct their child’s answers on admissions tests like the ACT, or take the test for them, to improve their score. In the sports recruiting scheme, parents made much larger “donations” to the university to have their students admitted as recruited athletes. Sometimes this money went to bribe the coaches, who agreed to admit students even though they didn’t play the sport in question. Sometimes some or all of the money went to the athletic programs at the schools. Some of the cases also involved the parents and Singer creating phony athletic profiles falsely indicating that the student was a star athlete in the relevant sport.

As with the NCAA case, in the Varsity Blues investigation there often was no discernible harm to the supposed “victims.” The universities received tuition dollars from the students who were admitted. In many cases the athletic programs received substantial sums of money as well.  In fact, in a recent ruling related to sentencing (where the dollar amount of the loss is important to calculating the sentencing guidelines), the judge recently found there was no loss to the universities. If there is no discernible financial harm to the “victims,” it should at least make you stop and question whether you have an appropriate criminal fraud case.

But what about the truly deserving students who were not admitted – aren’t they the true victims here? Well, yes, but not for criminal purposes. These defendants had no relationship to any such unidentified applicants and owed them no duty. The criminal charges are structured as a fraud against the universities and the testing companies, not against other students. The non-admitted students are victims of the defendants’ cheating in a societal sense, but not in a criminal one.

As I mentioned, the facts of these cases vary widely. For Singer and for the coaches who accepted hundreds of thousands of dollars in bribes to admit unqualified students in violation of the duties they owed to their university employer, I’ve got no problem with criminal sanctions. But for many of the parents, the picture is more complicated. It’s not clear all of them had the kind of intent we normally would require for a criminal conviction.

Consider one example: actress Felicity Huffman, who pleaded guilty and was recently sentenced to fourteen days in prison. Her case is relatively simple. She was not involved in the sports recruiting scheme. She simply paid $15,000 (a relatively modest amount, in this investigation) to have someone help her daughter cheat on the ACT.

That conduct is deplorable. But if you boil it down, it means Huffman was prosecuted and sent to jail for cheating on a test. It’s expensive and sophisticated cheating, to be sure, but that’s still all it is. If a future student manages to sneak in some unauthorized notes to the testing center and cheats on the ACT, are we now going to prosecute that student for fraud when she applies to college? What about a student who “embellishes” his entrance application – claiming he was captain of the debate team, for example, when in fact he was only a minor participant. How about a student who, once admitted, cheats on a calculus test? Are all of these now “fraud” and subject to criminal prosecution?

The conduct in the Varsity Blues case is reprehensible. It rightly caused widespread outrage based on the sense of privilege and entitlement demonstrated by the wealthy parents. But it’s not at all clear that a federal criminal prosecution is the appropriate response in all the cases.

Appropriate sanctions for cheating on your child’s college admissions test: your child gets kicked out of school. You forfeit any tuition dollars that you paid. The school gets to keep any other “donations” you made in connection with the cheating. You are publicly humiliated and disgraced, and your career suffers as you lose your acting gigs. And – perhaps the most severe sanction — you have to spend a lifetime trying to explain to your child why you did what you did and trying to remedy that breach of trust.


 The “Bridgegate” prosecution is another example of the expansive and inappropriate use of criminal remedies. (See my blog post here and Post article here.) The defendants engaged in a scheme to close inbound lanes on the George Washington Bridge, causing four days of massive traffic gridlock in Ft. Lee, NJ.  They falsely claimed they did it to conduct a traffic study, but in fact they did it to punish the mayor of Ft. Lee for refusing to endorse governor Chris Christie for re-election.

There was tremendous public outrage over this political stunt. Ultimately the defendants, who were Christie appointees, were prosecuted and convicted for fraud. The government’s theory is that the defendants defrauded the Port Authority of the salaries of the employees who were ordered to carry out the sham traffic study and the lane closures.

The Supreme Court recently agreed to review those convictions, and I expect the Court will throw them out. This “fraud” theory has no limiting principle, because almost every case of political misbehavior will result in some public employee time being expended. The defendants were not lining their own pockets. There was no law or regulation that mandated a certain lane configuration, and they had the authority to order the change. There was nothing inherently improper about the work they ordered the other employees to do – the only thing improper was their motive. They essentially were prosecuted for engaging in New Jersey hardball politics and lying about their true reason – the kind of thing that politicians, for better or worse, do all the time. This did not need to be a criminal case.

Appropriate sanctions for political mischief that is otherwise lawful: The career of the politician involved suffers from the public backlash. (This actually happened — Christie’s political career took a major hit from the scandal. He left office in disgrace and his presidential ambitions quickly withered.) The employees involved should be fired. (This also happened.) There could be possible civil suits if anyone was injured as a result of the traffic gridlock. And all involved are publicly disgraced and humiliated.

The Curse of Binary Thinking

 Part of what I think is going on with many scandals these days is a kind of binary thinking when it comes to misconduct: either something is criminal or it’s basically OK. Consider, for example, the Mueller report.

On the Russian “collusion” question, Mueller did not find evidence of a criminal conspiracy between the Russians seeking to influence the election and members of the Trump campaign. There were lots of contacts with the Russians, and the Russians were eager to help, but there was insufficient evidence of an actual criminal agreement to work together.

Many on the left reacted to this conclusion with something close to outrage. Look at all the contacts between the campaign and Russians! How could there not be a crime? But again, behavior can be reprehensible without being criminal. The Trump campaign knew that Russia was trying to help them win by using, among other things, emails stolen from their opponent. They welcomed and encouraged that help and did not report the various outreach efforts from the Russians. Even if not criminal, this is not OK.

The Trump administration’s response to the Mueller report has exhibited the same binary approach: “no crime – so nothing to see here.  Let’s move on.” But just because something isn’t criminal doesn’t mean it’s not a problem. Our standards for our elected officials should be higher than simply that they managed to avoid indictment. And it doesn’t mean there should not be some other kind of serious non-criminal consequences — whether that’s impeachment or just the results of the next election.

The same thing applies to these other scandals. Saying it’s not criminal doesn’t mean that the conduct of the defendants in those cases was okay. It just means that criminal sanctions are not necessarily the right response to the misconduct.

The Loss of Social Control

 I had a professor in law school who defined law as organized social control. His thesis was basically that the more other connections, norms, and informal means of responding to misbehavior you have in a society, the less law you need – and vice versa. If your neighbor is playing their music too loud and you know your neighbors and have ties within your community, you go talk to them and ask them to turn it down, maybe enlisting other neighbors to help. If you don’t know them, you call the cops – relying on the law to impose some social control.

Maybe that’s part of what is going on here. We see fewer alternative means of effective social control and so turn to criminal law for a solution. Many of the norms and informal controls that used to govern social and political behavior seem to be disregarded or shattered more and more routinely, with no apparent consequences. The super-wealthy and privileged seem to cheat, whether on taxes, college admissions, or elsewhere, and get away with it. Politicians lie repeatedly and pay no apparent political price. The Trump administration defies subpoenas and resists traditional congressional oversight, with few apparent consequences. The president himself calls for the investigation and jailing of his political opponents, and chants of “lock her up” are still a feature at his rallies. If people feel like nothing else is working, they may reach for criminal sanctions as a first resort rather than a last resort, looking for the law to impose some order in our lives.

I don’t know what the solution is, but we need a societal re-set on the appropriate use of criminal remedies. We can’t prosecute our way out of the current chaos.

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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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