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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Supreme Court Affirms Expansive Federal Criminal Jurisdiction in Taylor

On June 20, 2016 the U.S. Supreme Court issued its opinion in Taylor v. United Statesa case that was argued last February.  The defendant, David Taylor, was convicted of violating the Hobbs Act for taking part in two home invasion robberies near Roanoke, Virginia with members of a gang known as the “Southwest Goonz.”  The gang routinely targeted the homes of known drug dealers, hoping to find large quantities of cash and/or drugs along with victims who might be unlikely to report the crime.

In the crimes for which Taylor was convicted the robbers actually obtained only $40 in cash, some jewelry, and a couple of cell phones.  Taylor also sought to introduce evidence that even if the intended victims were drug dealers, they only sold locally-grown marijuana within the state of Virginia. He argued that the small-time and relatively unsuccessful robberies of purely local drug dealers did not have an effect on interstate commerce sufficient to support federal criminal jurisdiction under the Hobbs Act.

In a 7-1 holding, the Court rejected Taylor’s argument. The Hobbs Act requires that a robbery have an effect on interstate commerce or other commerce over which Congress has jurisdiction. Because Congress has substantial authority over the nationwide market in controlled substances, the Court said, any robbery of a drug dealer will affect commerce over which Congress has jurisdiction. And because the Hobbs Act applies to attempted robberies, this will be true even if, as in Taylor’s case, the defendant did not actually obtain any drugs.

In other words, if the government proves beyond a reasonable doubt that a defendant was attempting to rob a drug dealer, that will satisfy the federal jurisdictional requirements of the Hobbs Act whether or not that robbery was successful. The government does not need to prove that the drug dealer victim actually sold drugs across state lines or any other actual effect on interstate commerce.

The holding in Taylor is relatively narrow because it is limited to cases involving robberies of those engaged in the commerce of illegal drugs. If a defendant robbed someone who, for example, grew tomatoes in his back yard and sold them only at local markets, the outcome could be different and a more substantial effect on interstate commerce might be required. But Congress has such expansive federal jurisdiction over the market in controlled substances that any attempt to affect that market through robbery will subject a defendant to federal jurisdiction.

In short, the Hobbs Act now serves as a catch-all federal robbery statute that applies to any attempt to rob a drug dealer, no matter how local, trivial, or unsuccessful.  Justice Thomas dissented, arguing that a more substantial showing of an effect on interstate commerce should be required before such a small-scale, local robbery can be prosecuted in federal court.

For a more detailed analysis of the facts and arguments in Taylor, see this post that I wrote about the case back when it was argued.

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Supreme Court May Use the Bob McDonnell Case to Limit Federal Corruption Laws

Yesterday the U.S. Supreme Court heard the appeal of former Virginia Governor Bob McDonnell. As regular Sidebars readers know, I’ve followed the case closely, and I was at the Court to hear the arguments. Although it’s always risky to predict results based on the questions from the Justices, it appears that McDonnell and his attorneys have reason to feel pretty optimistic.

One reason they have for optimism is the fact that the Court agreed to hear the case at all; there was no obvious reason to do so. There was no circuit split in the lower courts that the Justices needed to resolve. A three-judge panel of the Fourth Circuit Court of Appeals unanimously upheld McDonnell’s convictions, and all the judges of that court had unanimously declined to rehear the case.

But the Supreme Court not only took the case, it took the unusual step of allowing McDonnell to remain free on bond while the case was pending. And during oral argument yesterday it became clear the Court has some deep reservations about the potential breadth of federal bribery laws.

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McDonnell and his attorneys outside the Supreme Court after the arguments

The Supreme Court Arguments 

McDonnell and his wife Maureen were convicted in September 2014 of multiple counts of federal corruption. Over a two-year period they received a series of extravagant gifts and loans worth more than $175,000 from businessman Jonnie Williams. The government charged that, in exchange, the McDonnells agreed to promote Williams’ dietary supplement, Anatabloc, within the Virginia government. (For more detail about the case and my analysis of the charges, you can read some of my earlier posts here and here.)

At the Supreme Court Noel Francisco, arguing for McDonnell, focused on what has been the defense’s primary theme throughout the case: whatever McDonnell may have done for Williams, it did not amount to “official action” for purposes of federal bribery law. He said the government proved only that McDonnell did things such as introduce Williams to other state officials or urge others within the government to meet with Williams to discuss possible research studies. Such steps, he argued, cannot constitute official action unless there is evidence that the governor also tried to influence the outcome of any subsequent meeting.

The distinction, Francisco urged, is between actually making or influencing a government decision and simply providing access to those who might do so. McDonnell, he argued, did only the latter. He said the government’s theory made it possible for politicians to be prosecuted for extending simple political courtesies to a supporter, even if they never tried to exercise actual government power or influence any government decision on that supporter’s behalf.

Some potential cracks did appear in Francisco’s argument during questioning from the Court. Chief Justice Roberts asked about a government employee who worked as a scheduler, whose job it was to arrange meetings with the governor. For that individual, he said, arranging a meeting, “I suppose, would be an official act.” Francisco initially agreed that was possible.

That quickly got him in trouble, however, because it seemed inconsistent with the governor’s claim that simply arranging a meeting can never, by definition, be a official action. Justice Kagan immediately started to probe this point with some follow-up questions, and Francisco quickly backed away from his initial concession. He said although other laws might prohibit the scheduler from taking payments for arranging meetings, it would not violate the bribery laws.

This was actually one of Francisco’s stronger points, which he made several times. Federal bribery law, he argued, is not meant to be a comprehensive ethical code that covers all misconduct. Even if bribery is interpreted more narrowly, as McDonnell urges, that would not necessarily immunize all kinds of misbehavior. There are other laws on the books, as well as personnel regulations and other potential sanctions, that may apply. But bribery law itself, he urged, needs to be more narrowly construed in order to avoid potentially criminalizing a great deal of routine political behavior.

The really tough questioning was reserved for Deputy Solicitor General Michael Dreeben, arguing for the government. Dreeben began by trying to focus the Court on the implications of McDonnell’s position. Arranging access or setting up a meeting can absolutely be official action, he argued. Otherwise a governor could set up a “pay to play” system through which he routinely demanded that people pay him in exchange for his agreement to arrange a meeting with other state officials: if you don’t pay, you don’t get the meeting. That seems to be the essence of what the bribery laws prohibit.

Dreeben argued that the implications of a ruling for McDonnell would be staggering. The Court would be saying it is acceptable for officials to sell access to government actors to the highest bidder. He argued that official action encompasses anything ordinarily done in the course of a public official’s duties, including arranging meetings and access. There is no legal basis for the carve-out that McDonnell is seeking for actions that didn’t actually influence the exercise of some government power. To hold otherwise, he argued, would be to create a “recipe for corruption.”

But for the most part, the Court didn’t seem to be buying it. The Justices, of course, have to think not only about the case before them but also about the implications for future cases of any opinion that they write. And several seemed troubled by the implications of the government’s argument that even something as routine as arranging a meeting or writing a letter could potentially support a bribery prosecution.

Justice Breyer in particular seemed very concerned about finding a limiting principle to further define federal bribery. He argued that if the legal standards are too broad it implicates the separation of powers by giving the executive branch, in the form of prosecutors, too much power to dictate the actions of legislative branch officials. He pressed both sides to help the Court find the words to craft the appropriate legal standard.

A great deal of time was spent on hypotheticals. Justice Breyer wondered whether it would be a felony if a constituent took a politician to lunch and bought an expensive bottle of wine, and after lunch the politician wrote a letter to a government agency urging it to act on a matter of interest to that constituent. Chief Justice Roberts imagined a case where a businessman takes a governor for an afternoon of trout fishing, and they discuss whether the business could get tax credits within the state. Is that a felony, he asked? Justice Kennedy asked whether it was a felony for the President to provide access to high-dollar donors.

Dreeben responded by arguing that “official action” is only one aspect of the crime and that the question of official action does not have to carry all of the weight in a bribery case. The prosecution would still have to prove a corrupt quid pro quo, a direct agreement to take the official action in exchange for the particular thing of value. In effect, he said, you have to look at the whole picture, not just the official action side of the equation: “you need to run this through all the elements of the offense.”

Looking at the whole picture, Dreeben also noted, shows why a case involving campaign contributions or routine political support would be very different from the McDonnell case. The Court’s prior decisions make clear that it is not enough simply to show a politician took actions that were desired by someone who contributed to her campaign. Given the nature of the quid, a much stronger direct quid pro quo would need to be shown. But the McDonnell case does not involve campaign contributions, and so those concerns are not implicated.

Corruption, Dreeben concluded, has to include a situation such as this, where a governor calls his Secretary of Health and says “take a meeting with my benefactor.” That means the person who paid the governor “will have the preferential opportunity that other citizens who do not pay will not have” to make their case before the Secretary. That kind of pay to play access is the essence of corruption and should be prohibited. The purpose of bribery law is to ensure that government officials act equally for the benefit of all, and not secretly to benefit those who are paying them off.

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White Collar Crime and Prosecutorial Discretion: The Inherent Tension

As I noted, it’s always risky to try to predict outcomes based on the Court’s questioning. But Deputy Solicitor General Dreeben didn’t seem to be getting a lot of love from the bench. Only Justices Sotomayor and Ginsburg seemed to be potentially in his camp. To varying degrees, all of the other Justices who asked questions seemed quite skeptical of the government’s position.

McDonnell’s case may be the latest example of the Supreme Court’s increasing discomfort with a common feature of white collar crime: broadly written laws that then rely on prosecutorial discretion to determine which cases to bring. White collar statutes tend to use expansive language in order to avoid creating loopholes or safe harbors for criminal activity. But as a result, it is often relatively easy to come up with a parade of horribles about hypothetical cases that might fall within the statute.

For example, six years ago in Skilling v. United States the Supreme Court ruled that the crime of honest services fraud should be narrowed to apply to only bribery and kickback cases. I remember during the Skilling arguments Justice Breyer (also the most vocal questioner in the McDonnell argument) expressing incredulity that an employee who called in sick to go to the ballgame could potentially be found guilty of honest services fraud. By limiting honest services fraud to bribes and kickbacks, Skilling excused the truant employee example.

But in fact Skilling did not solve Justice Breyer’s problem. An employee who uses the phone to call in sick to go to the ball game technically commits plain old federal wire fraud – there is no need to rely on honest services fraud. The employee is using the interstate wires to further a scheme to defraud his employer out of his salary. We don’t see such trivial cases clogging the federal courts because thankfully prosecutors exercise their discretion not to bring them – but legally, all of the elements of the offense are met.

Similarly, every witness interviewed by the FBI who lies about a material fact, no matter how trivial, meets the elements of the federal false statements statute. But only a relative handful of such cases end up being prosecuted, most often when there is other criminal conduct involved. If prosecutors actually brought charges every time someone lies to the FBI, they would have time to do little else.

It is similarly easy, as the Court demonstrated during the McDonnell arguments, to come up with hypothetical trivial cases that would violate the bribery laws. If I make an explicit deal with my Senator that if I buy him lunch he will write a letter to another federal agency on my behalf, then technically, yes, that meets the elements of the bribery statute. You don’t see such cases being brought because a) they probably almost never happen; and b) prosecutors recognize they are trivial and prosecuting would not be an appropriate exercise of their discretion.

Again, this breadth is a characteristic of many white collar criminal statutes. And although this did not come up explicitly during the McDonnell arguments, the government’s response to the hypothetical trivial cases effectively has to be, “Yes, that technically violates the statute, but we’d never bring such a case. Trust us.” That’s not a very satisfying answer to many on the Court these days.

This concern about the breadth of many statutes is also a component of the growing concerns these days about over-criminalization. Many are troubled by the fact that so much trivial conduct is potentially covered by federal criminal laws – even though the trivial cases usually do not end up being prosecuted.

But this system, of course, depends on prosecutors doing a good job of exercising their discretion. The Justices may feel an increasing need to limit the scope of some federal criminal statutes in light of their concerns about prosecutors’ charging practices in recent cases. For example, last year in Yates v. United States, prosecutors’ decision to charge a fishing captain with the twenty-year felony for throwing undersized fish overboard arguably led the Court to adopt an artificially narrow reading of a federal obstruction of justice statute. The year before that, in Bond v. United States, the Court expressed great concern over the government’s decision to use a statute prohibiting the use of chemical weapons to charge a jilted wife who sprinkled some caustic chemicals on a doorknob to try to harm her husband’s lover, resulting in only a minor skin irritation.

The Court may conclude that drawing some more limited statutory parameters is particularly appropriate when it comes to public corruption. As Justice Breyer emphasized, there are special separation of powers concerns at work in such cases. The fear is that if corruption laws are too sweeping, unscrupulous prosecutors might use them to take down political opponents.

The alternative to a system of broad statutes coupled with reliance on prosecutorial discretion is one of narrower laws that necessarily leave some loopholes and are easier to circumvent. During the McDonnell arguments, Justice Breyer, for one, seemed perfectly prepared to accept that. He noted that whatever standard the Court announces for “official action” will not be perfect and “will leave some dishonest conduct unprosecuted.” But that may be necessary, he argued, in order to avoid the separation of powers problems that result from the alternative of giving the prosecutor too much power to decide which conduct to punish.

Congress historically has chosen to draft deliberately broad corruption statutes to avoid making the laws easier to evade. As Dreeben noted, for decades those corruption laws have functioned reasonably well. Although no system is perfect, prosecutions involving routine political courtesies and campaign contributions are rare to non-existent – and McDonnell certainly is not such a case. The hypotheticals imagined by the Court are just that. They do not reflect the real world of federal corruption prosecutions, any more than imagined stories of Nationals fans indicted for calling in sick describe the real world of wire fraud.

The question now is whether the Court will nevertheless feel compelled once again to restrict the scope of federal criminal law, even if that means effectively creating a safe harbor for certain kinds of corruption. The impact on both pending and future prosecutions of public corruption could be dramatic.

A decision is expected by this June; Sidebars will keep you posted.

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Backyard Weed and Federal Criminal Jurisdiction: Taylor v. United States

Update June 20, 2016: Today the Supreme Court affirmed Taylor’s conviction by a 7-1 vote, upholding the government’s expansive assertion of federal jurisdiction under the Hobbs Act.

What are the limits of federal criminal jurisdiction – and what does that have to do with growing marijuana in your back yard?

There’s a lot of debate these days about the scope of federal criminal law and the issue of overcriminalization. Broadly written federal statutes and legal theories such as honest services fraud have the potential to turn a vast number of traditional state crimes into federal offenses, often with very hefty federal penalties.

Last week in Taylor v. United States the U.S. Supreme Court considered a challenge to the federal government’s assertion of criminal jurisdiction in an armed robbery case. But despite the relatively weak jurisdictional link, the Court does not seem poised to use the case to cut back on the reach of federal criminal law.

David Taylor and the “Southwest Goonz”

In 2009 a large number of home invasion robberies took place in the Roanoke, Virginia area. Local and federal law enforcement concluded that the perpetrators were targeting the homes of drug dealers, hoping to steal large quantities of money and/or drugs from victims who might be unlikely to report the crime to the authorities. A gang known as the “Southwest Goonz” was ultimately linked to more than thirty of these robberies; David Taylor was indicted in federal court for taking part in two of them.

In both robberies, the evidence was that Taylor and the other perpetrators targeted the homes in question because they believed the inhabitants were selling drugs. In each case, however, no drugs or substantial amounts of money were found. After threatening the occupants at gunpoint, Taylor and the others ended up stealing relatively minor items such as some jewelry, cell phones, a small amount of cash, and a single marijuana cigarette.

Taylor was convicted of two counts of robbery under a federal statute known as the Hobbs Act, as well as one count of using a firearm during a crime of violence. He was sentenced to nearly thirty years in prison.

The Hobbs Act imposes criminal liability on anyone who obstructs, delays, or affects commerce, or attempts or conspires to do so, through robbery or extortion. There was no real dispute that the robberies took place and that Taylor participated. But his lawyers argued the government had failed to prove beyond a reasonable doubt that Taylor’s actions affected commerce as required by the statute, given that this was basically a small-time local robbery.

The Hobbs Act defines “commerce” as any commerce between the states, as well as “all other commerce over which the United States has jurisdiction.” Taylor wanted to present evidence at trial that the victims of these robberies only sold Virginia-grown marijuana. Robbery of a dealer acting only within Virginia and selling only Virginia marijuana, he argued, would not affect interstate commerce to a degree sufficient to give the federal government criminal jurisdiction.

The lower courts ruled against Taylor, holding that all the government had to establish for Hobbs Act jurisdiction was that the defendant had attempted to rob someone who was selling illegal drugs. The government was not required to prove the marijuana in question had actually moved in interstate commerce or that any actual effect on interstate commerce had occurred. The Supreme Court agreed to hear the case to address what the government has to prove concerning the effect on commerce in a Hobbs Act robbery prosecution.

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The Limits of the Commerce Clause

As a government of enumerated and limited powers, the federal government must have a constitutional basis for every federal criminal statute. The default presumption is that crime is prosecuted by the states, and the overwhelming majority of criminal prosecutions in this country do take place at the state level. If the federal government wants to step in, it requires a constitutional “hook” to assert jurisdiction.

For many federal criminal statutes that hook is the Commerce Clause in Article I, Sec. 8 of the Constitution, which gives Congress the power to regulate commerce “among the several states.” Many federal crimes require the government to show an effect on interstate commerce as an element of the offense, in order to establish federal criminal jurisdiction. This requirement historically has been interpreted very broadly, requiring the prosecution to show only a minimal impact on commerce in any given case.

Over time Congress became accustomed to relying on the Commerce Clause to justify almost any piece of criminal legislation. But the Supreme Court dramatically curtailed those efforts in the landmark 1995 case of United States v. Lopez. In Lopez the Court struck down the federal Gun Free School Zones Act, which made it a crime to possess a gun in the vicinity of a school. The Court ruled that the Commerce Clause power did not allow Congress to regulate purely local gun possession with no apparent effect on interstate commerce. Five years later, in United States v. Morrison, the Court struck down the federal Violence Against Women act for essentially the same reason, holding that domestic violence was a local crime without an adequate link to interstate commerce.

But Lopez and Morrison turned largely on the Court’s conclusion that Congress was trying to use the Commerce Clause power to regulate local activities that were not commercial in nature. When it comes to activity that clearly is commercial, courts have routinely upheld the assertion of federal jurisdiction even when the effects on commerce in a particular case appear to be minimal.

For example, if a small restaurant that caters almost exclusively to local customers is robbed, courts will still find an effect on commerce because the restaurant purchases food and other goods that move in interstate commerce and as a result of the robbery will have fewer assets with which to make those purchases. Similarly, even if a particular action has a relatively trivial effect on commerce, jurisdiction will be upheld if the class of all such similar actions, taken in the aggregate, would affect interstate commerce to some degree.

Given the historically broad interpretation of the Commerce Clause, Taylor was always going to have an uphill battle. But it’s even worse for Taylor than it appears, for two reasons: 1) he was trying to rob a drug dealer, not just any merchant; and 2) the Hobbs Act applies to conspiracies to rob and attempted robberies, not just to actual robberies.

As noted above, the Hobbs Act applies when there is an effect on interstate commerce or on any other commerce over which the federal government has jurisdiction. And when it comes to drugs the Supreme Court has already ruled, in a case called Gonzales v. Raich, that the federal government has jurisdiction over all controlled substances, even locally grown marijuana that never crosses state lines. In Raich, users of medical marijuana argued that under Lopez and Morrison the federal government did not have the power to regulate their purely local growth and possession of marijuana. But the Court held that Congress has the authority to regulate even intrastate drug activity under the Controlled Substances Act, based on its potential to have an impact on the overall interstate market in illegal drugs.

In addition, because the Hobbs Act applies to attempts and conspiracies, it doesn’t really matter whether the perpetrators succeed in stealing illegal drugs. If the government shows that the robbery was carried out because the defendants planned or intended to steal illegal drugs, that will suffice – even if, as in Taylor’s case, the defendants were unsuccessful.

In short, in light of Raich, if you attempt to rob a drug dealer the “effect on commerce” requirement is almost automatically satisfied: Congress has jurisdiction over the commerce in illegal drugs, and robbing a drug dealer will always have some effect on that commerce. This is essentially what the lower courts held in Taylor’s case. And that effectively transforms the Hobbs Act into a law that automatically makes it a federal offense to rob a drug dealer – even one that is operating completely within a single state.

Taylor’s Argument and the Government’s Burden of Proof

Taylor’s primary argument is that, under the government’s theory, an effect on commerce is automatically established. But proving an effect on commerce is an element of the Hobbs Act offense. The government, he argues, should never be relieved of its obligation to prove each element beyond a reasonable doubt. Taylor urged that the government should be required to show some actual effect on commerce from the robbery in a given case.

At oral argument some members of the Court did seem troubled by the notion that the commerce requirement is automatically satisfied any time the intended robbery victim is a drug dealer, no matter the individual circumstances. They pressed the government attorney on whether there was any evidence a defendant could offer to rebut this element of the crime.

The government’s response boiled down to this: although it did not have to establish an actual effect on commerce resulting from robbing a drug dealer, it still did have to prove beyond a reasonable doubt that robbing a drug dealer is what the defendant intended to do. In other words, the government would have to prove first that there was a robbery, and then, in order to rely on the jurisdiction holding in Raich, it would have to prove that the intended victim was in fact a drug dealer. About the only evidence a defendant could introduce to rebut this element would be evidence that, even though a robbery took place, the defendant never intended to rob a drug dealer and the victim was not in fact selling drugs.

It’s not immediately clear why the Court took the Taylor case. The Justices may be looking for a way to trim back the assertion of federal jurisdiction under the Hobbs Act – but given the Raich holding, Taylor’s case does not seem like a likely vehicle. For example, if Taylor had robbed someone who was growing carrots in his back yard and selling them only to his neighbors, the Court may have probed what the government should have to prove concerning the effect on interstate commerce (since, unlike the market for illegal drugs, Congress does not necessarily have jurisdiction over an intrastate market for carrots). Perhaps if a case involved only the robbery of a single carrot, the Court would have occasion to limn the limits of Hobbs Act jurisdiction.

More difficult questions also would have been raised if the robbery had been of someone who grew marijuana in his back yard but only raised it for personal use, not for selling to others. Usually the robbery of an individual is not considered to have an effect on interstate commerce. Would the mere fact that the robbery involved marijuana be enough to confer Hobbs Act jurisdiction, even if no trade in illegal drugs was involved?

But although Taylor may not prevail on his jurisdictional arguments, the facts of his case are relevant for those concerned about the increased federalization of criminal law. Justice Ginsburg observed these were relatively routine robberies that easily could have been prosecuted by the state. The government responded that Taylor’s case was only one small part of a much larger federal investigation and prosecution. Still, Taylor’s nearly thirty-year federal sentence is pretty stiff.

When former Virginia Governor Bob McDonnell faced two years in prison for public corruption, a dozen different legal and political groups filed amicus briefs on his behalf in the Supreme Court arguing that his prosecution was an overreach by the federal government. But Taylor, facing a nearly thirty year sentence, stood alone before the Court; not a single amicus intervened to argue on his behalf against the remarkable breadth of the Hobbs Act.

Given Raich and the federal interest in the illegal drug trade, the Court does not seem likely to use the Taylor case to rein in the Hobbs Act. We will have to await future cases to see if the Court is inclined to impose some new Commerce Clause limitations on federal criminal jurisdiction.

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Barry Bonds Obstruction Case Splinters the Ninth Circuit

Baseball superstar Barry Bonds hit one final home run in the U.S. Court of Appeals for the Ninth Circuit last week. An eleven-judge panel threw out Bonds’ 2011 conviction on a single count of obstruction of justice. It was a 10-1 blowout, with only one judge believing that Bonds’ conviction should be upheld, but the case produced five different opinions totaling 75 pages. The amount of ink spilled was a bit remarkable, considering this should have been, as one of the judges put it, a “very simple case.”

In 2003 a grand jury in San Francisco was investigating whether Bonds’ trainer, Greg Anderson, and others had supplied illegal steroids to a number of professional athletes. Bonds was subpoenaed to testify in the grand jury and was granted immunity; prosecutors were not looking to charge him, they were interested in the information he had about Anderson. Ultimately, though, prosecutors concluded that Bonds lied in the grand jury and they indicted him on four counts of perjury and one count of obstruction of justice.

After years of pre-trial maneuvering the case went to trial in 2011. The government dismissed one of the perjury counts during the trial. The other three perjury counts resulted in a hung jury and were ultimately dismissed as well. The jury convicted Bonds only on the single obstruction of justice count.

The jury’s guilty verdict was based on what became known as the “celebrity child” response:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A:  I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t we don’t sit around and talk baseball, because he knows I don’t want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Q:  Right.

A:  That’s what keeps our friendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. So, I don’t know — I don’t know — I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just — I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t — there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.

The jury convicted Bonds of obstruction of justice based solely on this exchange. The trial judge upheld the conviction, and so did the initial three-judge panel of the Court of Appeals. That prompted the Court to grant further review by the eleven-judge en banc panel.

scales and gavel

The Five Different Opinions

The statute Bonds was convicted of violating, 18 U.S.C. § 1503(a), punishes anyone who “corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The court’s task was to determine whether a reasonable jury could have found that the “celebrity child” response, standing alone, violated this provision. Most of the judges agreed that the conviction had to be reversed because Bonds’ evasive answer was not “material” to the grand jury’s investigation – but that was where the agreement ended.

1) Chief Judge Kozinski, joined by four other judges, wrote the first opinion. Much of it was devoted to what he claimed are the dangers posed by the “vast” coverage of § 1503. Lawyers, he argued, are at particular risk: “Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction.” Arguing motions, questioning witnesses, or filing pleadings, he said, all could be considered endeavors to influence the due administration of justice and might end up being prosecuted.

The critical limitation on the statute, he argued, comes from the requirement that the obstructive conduct be material – that it had the “natural tendency to influence, or was capable of influencing, the decision of the decision making body.” Although the language of § 1503 (unlike the perjury statute, for example) does not require materiality, Judge Kozinski said Ninth Circuit precedent made materiality an element of the offense. Bonds’ single evasive (but truthful) answer during the course of several hours of testimony could not be considered capable of influencing the decision of the grand jury, and therefore was not material.

2) Judge N.R. Smith wrote the next concurrence, joined by three other judges. Judge Smith argued that the proper standard for materiality was the “nexus” requirement for obstruction cases announced by the Supreme Court in United States v. Aguilar: the conduct must have the “natural and probable effect” of obstructing justice. The “celebrity child” answer failed this nexus requirement because the natural and probable effect of an evasive answer is simply to elicit follow-up questions and clarification, not to obstruct the proceeding.

Judge Smith concluded that evasive or misleading testimony can only amount to obstruction when it completely thwarts the investigation and amounts to a refusal to testify. A single truthful but evasive answer cannot meet this standard.

3) Judge Reinhardt, writing only for himself, added a third concurrence. He disagreed with the unwarranted breadth of Judge Kozinski’s opinion and all of its speculation about the dangers of the statute. On the other hand, he disagreed with Judge Smith that at some point a refusal to testify could amount to obstruction of justice. According to Judge Reinhardt, the proper remedy in such a case would be a prosecution for contempt, not obstruction, and testimony or a refusal to testify alone could not constitute obstruction of justice.

4) Judge Fletcher, also writing only for himself, took a completely different approach. Tracing the history of the statute back to 1831, he argued that the term “corruptly” refers only to obstructing justice through bribery. Because Bonds did not bribe anyone in connection with the grand jury proceeding, his conduct did not violate § 1503.

5) Finally, Judge Rawlinson wrote as the sole dissenter. She argued the jury could have properly found that Bonds intended to obstruct the grand jury’s investigation through his evasive testimony and that the court was improperly second-guessing the jury’s verdict.

Bonds 2

Breaking it Down – What’s the Right Approach?

It’s important to recall that the case before the Court of Appeals was not the case that the prosecutors brought. Much of the Court’s discussion makes it sound as though the prosecutors had indicted Bonds based only on this single evasive answer. In fact Bonds was charged with four counts of perjury and the obstruction of justice count was based on seven different exchanges in the grand jury. But the jury could not agree on the perjury counts and ultimately found that only the single “celebrity child” response constituted obstruction of justice.

To the extent the court’s opinions are seen as admonishing prosecutors for an unduly broad attempted application of § 1503, therefore, that criticism is misplaced. The prosecutors did charge a more substantial case, but were left to defend a verdict that relied only on the single, meandering, non-responsive answer. On appeal the government had to play the hand that the trial jury dealt for them – and it wasn’t a good one.

Judge Kozinski’s opinion, for example, contains a lot of sweeping rhetoric about the potential breadth and dangers of the statute that has nothing to do with the case – or with the real world. The idea that § 1503 makes “everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation” is simply overwrought hyperbole.

White collar crime statutes do tend to be written in broad strokes, because they have to cover a wide range of conduct that may fall within nebulous concepts such as “fraud” or “corruption.” One can always conjure up a parade of horribles that has little or nothing to do with the way the laws are actually enforced. The federal wire fraud statute, for example, would potentially apply to any employee who called in sick in order to go to the ballgame, and yet we don’t see such cases clogging the courts.

The obstruction of justice statute in its current form has been around for more than a hundred years and there has been no epidemic of courtroom advocates being prosecuted based on ordinary, even aggressive, advocacy. Yet Judge Kozinski felt obligated to argue that all lawyers are in danger because the statute potentially “gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass.” This has nothing to do with the facts of the Bonds case or with any existing problem with § 1503 – but it does dovetail nicely with the “bad prosecutor” meme that is so popular among many these days, including Judge Kozinski.

The second flaw in Judge Kozinski’s opinion is that the solution he offers to the statute’s breadth — the requirement of materiality — would do nothing to prevent the prosecutions he purports to fear.  Almost anything done by an advocate in the “ordinary tug and pull of litigation” would have the potential to influence the proceeding and would thus be material.  The reason such cases are not prosecuted is that routine advocacy is not “corrupt” behavior under the statute — and because prosecutors properly exercise their discretion not to bring them.  All of Judge Kozinski’s speculations about the dangers of the statute are therefore irrelevant not only to the case but also to the solution he proposes.

At the same time, Judge Kozinski offered a startling example of his own expansive view of § 1503. Suppose, he suggested, that in response to whether Greg ever gave him anything to inject himself with, Bonds had replied “I’m afraid of needles” rather than by giving his “celebrity child” response. Judge Kozinski suggested such an answer might constitute obstruction, because it implies a negative response.

The Supreme Court made it clear in the leading perjury case of Bronston v. United States that a merely evasive answer cannot be perjury. Perjury requires proof of actual falsity, and if a witness evades it is the duty of the questioner to detect it and pin the witness down. An answer may be non-responsive due to deliberate evasion, but it also may be due to nerves, miscommunication, or a misunderstanding of the question. Stringent proof requirements for perjury are therefore required so that witnesses are not chilled from testifying out of fear that an answer that is less than perfectly responsive might later be charged as perjury.

The Court in Bronston expressly rejected the idea of “perjury by negative implication” – perjury based on an answer that simply implied something that wasn’t true. Judge Kozinski, however, seemed to open the door to the idea of obstruction of justice by negative implication. As I’ve argued elsewhere, if that were the law then all of the safeguards that Bronston put in place to protect testifying witnesses would be out the window because prosecutors unable to prove perjury could simply charge obstruction of justice instead. It’s odd that Judge Kozinski expresses so much concern about the potential breadth of the statute but then offers his own hypothetical that truly would represent a sweeping expansion of the crime of obstruction of justice.

Of the two main opinions, Judge Smith’s has the better analysis. First, I think he’s correct that the proper standard for materiality is the Aguilar “natural and probable effect” test, not Judge Kozinski’s materiality test. Although some have argued, like Judge Kozinski, that there should be a separate materiality requirement for obstruction of justice, it’s not necessary. The “natural and probable effect” nexus requirement subsumes materiality within it, because it’s impossible for conduct to meet the nexus requirement and not be material. Adding a separate requirement of materiality is simply redundant. In fact, the nexus requirement provides greater protection for defendants than materiality: although any conduct that satisfies the nexus requirement will always be material, it’s easy to envision conduct that would be material to an investigation but that is so removed or remote from the investigation that it fails the nexus requirement.

I think Judge Smith is also correct that the “natural and probable effect” of a single, truthful but evasive answer can probably never be to obstruct justice, given the nature of the adversary system. As he argued, the natural and probable effect of such an answer is to inspire more probing and follow-up questions, as indeed happened during Bonds’ grand jury appearance. There’s almost no way that a single evasive answer would thwart the grand jury’s work.

At the same time, I believe Judge Smith is also correct that in certain cases evasion can constitute obstruction of justice. If a witness continually refuses to be pinned down and to answer questions directly they are not merely being evasive, they are essentially refusing to testify. At some point such conduct crosses the line into corrupt behavior that thwarts the investigation and may amount to obstruction.

Because I agree with Judge Smith that sometimes extreme evasion can rise to the level of obstruction, I disagree with Judge Reinhardt’s concurrence.  And Judge Fletcher’s historical analysis was very interesting, but if he’s correct that “corruptly” requires bribery then obstruction of justice would not even apply to classic obstructive behavior such as shredding documents that have been subpoenaed by a grand jury.  I think that ship has sailed.

*  *  *

Whether one focuses on the “natural and probable effect” test or on the requirement of “corrupt” behavior, the outcome is the same: one truthful, meandering, non-response by Bonds could not have had any real impact on the grand jury’s investigation. Once the jury convicted based only on that single exchange, the verdict was doomed.

This case doesn’t have sweeping implications for the law of obstruction of justice or for the adversary system. It didn’t call for a judicial rebuke of the prosecutors or yet another cautionary tale about a criminal justice system run amok. In the end, it’s all about the facts of one case and the basis of the jury’s verdict. And as a factual matter, there’s simply no way that Bonds’ single, truthful answer could have obstructed that grand jury proceeding.

It really should have been a simple case. There’s no reason that Judge Smith’s concise, eight page analysis could not have been the opinion for the entire court. It’s surprising the Ninth Circuit saw the need to take it into extra innings.

Update: on July 21, federal prosecutors announced they would not seek to appeal the Ninth Circuit’s decision to the U.S. Supreme Court, thus bringing the Barry Bonds obstruction of justice case to a close.

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The Supreme Court in Yates: The Wrong Response to Overcriminalization

The Supreme Court ruled last week in Yates v. United States that fish are not “tangible objects” within the meaning of a federal obstruction of justice statute. Although many are hailing Yates as a win in the fight against overcriminalization, it’s a Pyrrhic victory at best.

Concerns about overcriminalization – the belief that there are too many criminal laws on the books and too many inappropriate prosecutions – may be addressed in several different ways. We could focus on training prosecutors to do a better job of exercising their discretion in deciding when to bring cases and what crimes to charge.

We also could focus on urging Congress to write criminal statutes that are clear and narrowly focused, and not to respond to seemingly every problem by enacting more criminal sanctions. Ideally, we could persuade Congress to undertake a sweeping overhaul and reform of the federal criminal code.

But the worst way to respond to overcriminalization is for courts artificially to narrow criminal statutes through results-oriented decisions that ignore the plain language of the law and ultimately lead to irrational results. Unfortunately, that’s exactly what the Supreme Court did in Yates.

Yates will be remembered for many things. The different opinions feature some of the strangest bedfellows among Supreme Court Justices in recent memory. It may be the first time a Supreme Court opinion has included two references to Dr. Seuss as well as one to the children’s game of Mad Libs. And it almost certainly set a Supreme Court record for bad puns, as Justices, brief writers, and commentators alike were unable to resist the many opportunities for groaners about fish and fishing. But Yates should not be seen as some kind of milestone in the fight against an out-of-control criminal code.

There’s an old saying that bad cases make bad law. In Yates, a prosecution that seemed excessive led the Supreme Court to adopt a strained and irrational interpretation of a relatively straightforward statute. The outcome will deprive prosecutors of a useful tool in other, more serious cases, and will do absolutely nothing to cure the problem of overcriminalization.

 fishing boat

The Supreme Court’s Decision

The facts of the case are familiar by now. Captain John Yates was fishing in the Gulf of Mexico when an inspector boarded his vessel and discovered about seventy red grouper that were below the legal minimum size. The inspector issued Yates a civil citation and instructed him to keep the undersized fish on ice until he returned to port, where federal officials would seize them. Once the inspector left his boat, however, Yates ordered a crewmember to throw the undersized fish overboard and replace them with larger ones. He also instructed his crew to lie to federal officials about what had happened.

Yates was charged with three crimes, including obstruction of justice under 18 U.S.C. § 1519. That statute provides up to a twenty year penalty for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration” of any federal matter. The government charged that Yates violated this statute by destroying a tangible object – the undersized fish – with the intent to obstruct the federal investigation of his violation of the fishing regulations.

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

Writing for a four-Justice plurality, Justice Ginsburg (joined by Chief Justice Roberts and Justices Breyer and Sotomayor) agreed with Yates. Although acknowledging that “tangible object” is not ambiguous on its face, Justice Ginsburg concluded that, considered in context, the term must be given a narrower reading. Because Congress had in mind Enron, Arthur Andersen, and document shredding when it passed the statute, the term “tangible object” should be interpreted to mean only objects “used to record or preserve information.”

The plurality held that canons of statutory construction support this interpretation. The term “tangible object” is preceded by the words “document” and “record,” which suggests it refers to objects that, like documents and records, store information. Similarly, the statute prohibits “falsifying” or “making a false entry in” documents, records and tangible objects. Those verbs, Justice Ginsburg concluded, also support a narrow interpretation of “tangible object:” although one can make a false entry in a computer hard drive, for example, one cannot make a false entry in a fish.

Justice Alito wrote a separate concurrence to emphasize the narrowness of the Court’s opinion. Although he thought it was a very close call, he agreed with the plurality that Yates had the better of the statutory interpretation argument.

In dissent Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas, adroitly gutted the other opinions. (I warned you the fish puns were hard to resist.)   She said the question is really a simple one: does “tangible object” in the statute mean what it means in common, everyday English usage?   She concluded that the answer is “yes,” and that “conventional rules of statutory construction all lead to a more conventional result: A ‘tangible object’ is an object that’s tangible.”

Justice Kagan agreed that Congress was concerned with the destruction of evidence that would impede federal investigations when it passed § 1519. But evidence may take many forms, including not just documents and records but other objects as well. Given the concerns about obstruction of justice, it made sense for Congress to pass a ban on destruction of evidence of any kind, and it used broad language to do so.

The rules of statutory construction relied upon by the plurality and concurrence, Justice Kagan continued, come into play only when there is ambiguity in the statute. Here there is none: “tangible object” is a very broad term, but it is not ambiguous. The plurality and concurring opinions, she argued, are essentially exercises in creating ambiguity where none exists and then resolving it in favor of the defendant. There is no reason to believe, she concluded, that “tangible object” in §1519 means anything other than what it says.

 The Result: a Mixed-Up World Worthy of Dr. Seuss

There is a fundamental incoherence at the heart of the plurality and concurring opinions. The decision narrows the class of evidence to which the obstruction statute applies by holding that “tangible object” in §1519 should be limited to objects that “record or preserve information,” and concludes that class of evidence is limited to objects such as computer hard drives and flash drives.

But all evidence, in whatever form, “records and preserves information.” That’s what makes it evidence. A bloody knife, a stained article of clothing, and a ziplock of drugs all are of value to a federal investigation only because of the information they contain and convey. Information may include words on a page, but may also include an object’s dimensions or physical characteristics; things contained on the object such as fingerprints, bloodstains, or DNA; or simply the fact that the object exists. It would make no sense for Congress to ban destruction of only one form of evidence and not the others.

Suppose the inspector had taken photographs of the undersized fish, given them to Yates, and told him to bring the photos back to port to turn over to authorities along with the fish. Under the majority’s decision, it would now violate §1519 if Yates destroyed the photographs, but not if he destroyed the fish themselves – which are, of course, the best evidence of the violation. An interpretation of a statute that leads to such absurd outcomes should be suspect.

Nor can the Court’s decision be defended on the ground that Congress was concerned with corporate and financial fraud when it passed §1519. Evidence of such fraud is not limited to documents and records. For example, one aspect of the Enron investigation concerned fraudulent accounting transactions involving several Nigerian oil barges. Suppose a target of the investigation, seeking to cover up the transactions by denying the barges ever existed, ordered the barges towed out to sea and sunk. That would obstruct the Enron corporate fraud investigation just as Arthur Andersen’s document shredding did – but now it would not be covered by §1519 because a barge, according to the Court, is not a “tangible object.”

What’s more, although the Court supported its decision by noting that Congress had “trained its attention on corporate and accounting deception and cover-ups,” the Court’s holding does nothing to limit §1519 to such cases. The statute will still apply, for example, in a terrorism case if the suspects destroy their e-mail communications, or in a homicide case if a suspect destroys letters tying him to the victim. The Court claimed that §1519 is aimed only at a particular kind of case, but reached a result that limits the statute only to a particular kind of evidence.

The Yates result is further undermined when one considers how easy it would have been for Congress to use narrower language, if that was truly its intent. If the focus was solely on objects that store information, why not write the statute to say “document, record, or data storage device?” If the intent was for the law to apply only to corporate fraud investigations, why not include those words in the statute? The Court seems to believe that Congress was being deliberately opaque, and then performs mental gymnastics to “discover” Congress’ true meaning. It’s far more likely, as Justice Kagan observed, that Congress simply meant what it said and said what it meant.

  An Ineffective Way to Combat Overcriminalization

Justice Kagan pointed out near the end of her opinion what really seemed to be driving the majority: concern about “overcriminalization and excessive punishment in the U.S. Code.” She agreed that §1519 may be a bad law that sweeps too broadly, but said the remedy is not for the Court to rewrite the law: “we are not entitled to replace the statute Congress enacted with an alternative of our own design.”

It was pretty clear from the oral argument that the prosecution troubled most of the Justices. Interestingly, though, two of the Justices who seemed most concerned at oral argument about prosecutorial discretion and why the case was charged as it was – Justices Scalia and Kennedy – both joined Justice Kagan in her dissent. Although they thought the prosecution was excessive, they recognized that the proper remedy was not to adopt a tortured and unnatural reading of the statutory language.  The dissenters are correct, as evidenced by the fact that Yates will actually do nothing to reduce overcriminalization.

Many of the groups that filed amicus briefs in support of Captain Yates were focused on the problem of overcriminalization. Those groups are now claiming victory, but those claims are misguided. Recall that Yates was charged with three different crimes, and was convicted of two – his other conviction was for violating 18 U.S.C. §2232(a), which prohibits destruction of evidence to prevent its seizure. That felony conviction remains undisturbed.

If the argument is that someone who engages in conduct like that of Captain Yates does not deserve to be prosecuted at all, merely removing one arrow in the federal prosecutor’s quiver will not achieve that result. There are plenty more charges from which to choose – such as §2232(a) — if a prosecutor is so inclined.

Others may point out that charging Yates with §1519 was particularly inappropriate because it is a twenty-year felony. But this is mostly a rhetorical point; no judge or lawyer involved in the case would ever have believed that Yates faced anything close to twenty years. If an over-zealous prosecutor tried to intimidate Yates by threatening to lock him up for twenty years, a defense lawyer likely would laugh in the prosecutor’s face.

As Justice Kagan observed, statutes like §1519 provide a wide range of potential penalties because they apply to a wide range of misconduct. We rely on judges to fashion an appropriate sentence in any given case. The judge in Yates’ case did just that, sentencing him to only 30 days in prison.

What’s more, the decision in Yates does nothing to prevent §1519 from being applied in other trivial cases where a twenty-year felony may seem excessive. For example, as Justice Kagan pointed out, if Captain Yates had destroyed a ship’s log recording the catch, rather than the fish themselves, that could still be prosecuted under the Court’s decision.

So when all is said and done: Yates is still a convicted felon; if another Captain comes along tomorrow and does exactly the same thing he may still be prosecuted and face the same ultimate punishment; and §1519 itself may still be applied in minor cases where it seems clearly excessive, so long as the right kind of evidence is involved. Given all of that, where exactly is the victory in the fight against overcriminalization?

In the meantime, other cases not as trivial as Yates’ will be affected. For example, two friends of the alleged Boston Marathon bomber Dzhokhar Tsarnaev were recently convicted of violating §1519 by taking his backpack, which contained evidence of his involvement in bomb-making, and throwing it in a dumpster. Now that the Court has ruled a backpack is not a “tangible object” under §1519, those convictions likely cannot stand. By imposing a strained interpretation on the statute in Yates, the Court has removed a potentially valuable tool that prosecutors could use effectively in other cases in which all would agree it is completely appropriate.

The Court’s definition of “tangible object” may have led to the desired outcome in Yates’ case, but it leaves behind a statute that draws arbitrary distinctions, ignores common English usage, and makes little sense.

Bad cases make bad law. That’s the true legacy of Yates.

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Yates v. United States and the Problem of Overcriminalization

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

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

fishing boat

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

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

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

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

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

The Issue of Overcriminalization

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

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

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

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

Decorative Scales of Justice in the library

#1: Too Many Criminal Laws on the Books

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

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

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

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

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

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

#2: Existing Laws Are Too Broad and Vague

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

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

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

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

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

#3: Prosecutorial Discretion – Or the Lack Thereof

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

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

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

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

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

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

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

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

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

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