Misguided Prosecutions and Washington “Gaffes”

There’s a well-known saying in Washington that the definition of a “gaffe” is when a politician inadvertently tells the truth. Assistant Attorney General Leslie R. Caldwell is not a politician, but she had her own “Washington gaffe” moment earlier this month while speaking on a panel sponsored by the Federalist Society (YouTube video available here).

Caldwell, who serves (for a few more weeks, at least) as the head of the Criminal Division at the U.S. Department of Justice, appeared on the panel with four white collar defense attorneys on December 8 at the Washington Press Club. The topic was overcriminalization – not as in too many criminal statutes being on the books, but overcriminalization in the form of federal prosecutors bringing cases that never should have been pursued as criminal matters.

The defense attorneys on the panel had represented corporate and individual defendants in recent major cases involving FedEx, a medical device company called Vascular Solutions, and pharmaceutical company Warner Chilcott. Those cases ended either in acquittals or, in the case of Fed Ex, with the government dismissing the case mid-trial. Each defense attorney told a version of the same basic story: the prosecution was an outrageous miscarriage of justice, criminal charges never should have been filed or even considered, and no one within the relevant prosecutor’s office had been willing to give the defense a fair hearing about why the case should not be indicted.

When AAG Caldwell took the podium as the final speaker, she appeared to throw her colleagues in the U.S. Attorneys’ Offices under the proverbial bus. She went out of her way to distinguish the Criminal Division at Main Justice in DC from the ninety-four U.S. Attorney’s Offices around the country. She said that while the attorneys in the Criminal Division operate with professionalism and integrity, she has seen “wide variation around the country” in the U.S. Attorney’s Offices in terms of their level of experience and quality of supervision.

Although not commenting on the specific cases discussed by the other panelists, AAG Caldwell agreed that sometimes cases get filed that should not have been filed; “I’m not going to dispute that.” She discussed a couple of additional examples where U.S. Attorney’s Offices had proposed misguided prosecutions. In one instance, prosecutors wanted to indict two partners at a law firm for obstruction of justice for seeking additional time to respond to a grand jury subpoena; in another, prosecutors proposed to charge all the adult residents of a small town in a RICO conspiracy. Because RICO cases and indictments of attorneys — unlike most cases — require review by Main Justice, those cases were able to be quashed by the Criminal Division.

Finally, Caldwell encouraged defense lawyers who believe prosecutors are pursuing inappropriate cases to seek review by Main Justice if they cannot get their concerns addressed. She said the Criminal Division recognizes that “not all U.S. Attorney’s Offices are created equal,” and that defense attorneys should not hesitate to go over the U.S. Attorney’s head and appeal to Washington in appropriate cases.

Caldwell’s suggestion that prosecutors in the U.S. Attorney’s Offices around the country do not always measure up to those in her own Criminal Division apparently did not sit well with her Justice Department colleagues. Two days later she issued a letter of apology to all DOJ attorneys. She wrote that while speaking at the panel she had defended the Department “in a way that inappropriately suggested that the care taken by U.S. Attorney’s Offices and others in making prosecutorial decisions was less than that taken by attorneys in the Criminal Division.” She said she deeply regretted the remarks, which she called “a mistake.”

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Caldwell’s Comments: Mistake or D.C. Gaffe?

For AAG Caldwell to make her points in that particular forum and format may indeed have been a mistake – but was she wrong?

Before considering that, a couple of observations about the panel discussion. First, the Federalist Society’s agenda was pretty transparent, and the ratio of four defense attorneys to one prosecutor was not exactly an attempt to be “fair and balanced.” The defense attorneys were naturally presenting the details of their cases from their own perspective. They did prevail, so no doubt their claims have some merit. But there are always two sides to such stories, and I think it would be surprising if the facts were indeed so black and white. The panel would have been more interesting if prosecutors in some of those cases could have been persuaded to participate and explain why they believed the case was justified.

Second, as one of the panelists pointed out, there are between eighty and ninety thousand criminal defendants prosecuted each year by the Department of Justice and all but a relative handful end up with either a guilty plea or a conviction at trial. So while talking about a few high-profile cases where the defense prevailed is interesting and worthwhile, it would be wrong to conclude that those cases represent anything close to the norm. As they say in journalism, no one writes stories about all the planes that don’t crash. Examples where the prosecution’s case falls apart are interesting and newsworthy in part because they are so unusual.

But back to AAG Caldwell’s comments. It really shouldn’t be controversial to admit that occasionally cases get filed that should not be filed. Law is a human enterprise and thus inherently flawed. There are thousands of prosecutors working for the Department of Justice across the country on tens of thousands of case each year. People sometimes are going to screw up.

It also should be relatively uncontroversial to observe that the U.S. Attorney’s offices vary in terms of their levels of experience and quality. Those offices operate with a great deal of autonomy, and are staffed by individuals with varying backgrounds and experiences from different parts of the country with different legal communities and traditions. Obviously some offices are going to be better run and more experienced than others.

With relatively few exceptions, AUSAs are free to investigate and indict their cases with no oversight from D.C. I don’t know whether the average line attorney in the Criminal Division in Washington is smarter than the average AUSA around the country, but I do know the attorney in Washington is going to have his or her cases supervised and reviewed by veteran prosecutors who have seen many similar cases and issues in the past. That level of seasoned review and quality control is not always available within every U.S. Attorney’s Office, where they may not see nearly as many large or complex cases.

It’s not fair to suggest that Main Justice itself is immune from making mistakes or bringing bad cases, but I think it’s perfectly fair to suggest that such cases are more likely to originate in the U.S. Attorney’s offices.

So although I’m sure she wishes she had phrased them differently, I think AAG Caldwell’s comments were basically correct. And they highlight an issue I think DOJ needs to take seriously: a need for renewed focus and training nationwide on the sound exercise of prosecutorial discretion.

Emphasizing the “Discretion” in Prosecutorial Discretion

There have been a number of high-profile examples recently of cases that appear to have involved bad charging decisions. If the government loses, as in the cases discussed during the Federalist Society panel, that is generally the end of it — other than providing great war stories for defense counsel. But when the defendant in such a case is convicted, the government is faced with defending its charging decisions on appeal. As I wrote in this recent post, that has led the U.S. Supreme Court recently to question whether prosecutors can be trusted to exercise their discretion appropriately.

For example, in Bond v. United States a woman who was angry at her husband’s lover sprinkled a caustic chemical on her doorknob and mailbox, which caused a minor skin irritation easily treated with cold water. Federal prosecutors responded by charging Bond with a felony aimed at punishing the use of chemical weapons. In Yates v. United States, a commercial fisherman received a civil citation for catching several dozen undersized red grouper and was ordered to take the fish back to port to be seized by authorities. When instead he threw the fish overboard, he was indicted for obstruction of justice under a statute that carries a maximum twenty-year penalty. Both these cases made it to the Supreme Court, and in both cases the Court expressed incredulity that prosecutors had chosen to bring the charges.

Cases where inappropriate charges are filed do not cast the Department of Justice in a favorable light. For the individual defendants, of course, they can result in tremendous injustice, which is contrary to DOJ’s fundamental mission. And if courts lose faith in the judgment and charging decisions of prosecutors, they will try to find ways to rein the government in – even if, as in Yates, that means adopting an interpretation of a statute that seems contrary to its plain language and common sense. This can make it more difficult for all prosecutors to do their jobs.

Members of the Federalist Society panel also talked about prosecutor myopia, where prosecutors could only see the facts a certain way and remained convinced, up to the end, that their cause was righteous. I think this is a real phenomenon; those who are trained in criminal prosecution may tend to see criminal remedies as the best option. As the saying goes, when your only tool is a hammer, every problem looks like a nail. But particularly when it comes to white collar crime and regulatory offenses, it’s critical for prosecutors to recognize there are many possible alternative remedies and that criminal prosecution may not be the best solution.

Cases like Yates, Bond, and those discussed at the Federalist Society panel, along with AAG Caldwell’s observations about the varying levels of experience within the U.S. Attorney’s Offices, suggest that DOJ could benefit from a renewed emphasis on the proper exercise of prosecutorial discretion. Washington may not be able to review all proposed indictments, but Main Justice could ensure that all prosecutors around the country are thoroughly trained in the “discretion” aspect of their jobs.

Prosecutors need to know the criminal law, of course, but they also need to have hammered into them, from day one, that deciding when not to apply criminal law is a huge part of their jobs. All prosecutors know this on some level, but there’s a difference between knowing it and having it ingrained and repeatedly stressed as a part of your professional identity and institutional culture. If there is too much emphasis on indictment numbers and “stats,” prosecutors may lose sight of the fact that often they are doing their jobs by declining to file charges, even after a lengthy investigation.

It’s not unheard of for prosecutors and investigators who have worked on a case for months or years to “fall in love” with their case or their witnesses and lose some ability to evaluate it objectively. That’s where some level of review by experienced and uninvolved prosecutors could be particularly useful.

I think it would be interesting if DOJ established some more formal mechanism whereby defense attorneys like those who appeared at the Federalist Society panel could obtain Main Justice review of proposed major indictments they feel are misguided. Currently defense attorneys can try to seek such a review, but there is no official process and no guarantee that anyone will listen. It would be easy for such a system to be abused, of course, and so setting up guidelines might be tricky. But if there were some official avenue for review of major cases, perhaps some mishaps such as those discussed by the panel could be avoided.

If inappropriate cases get filed it isn’t good for anyone: certainly not for those charged, not for the Department of Justice that ends up with a black eye, and not for the justice system as a whole. The culture within any institution is set at the top, and the Department of Justice needs a culture that emphasizes the importance of the sound exercise of prosecutorial discretion. If DOJ recognizes, as AAG Caldwell observed, that not all U.S. Attorney’s Offices are created equal and some lack appropriate expertise and experience, it would be wise to take some nationwide steps to remedy that situation and provide some safeguards.

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White Collar Crime, Prosecutorial Discretion, and the Supreme Court

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

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

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

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

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

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Prosecutorial Discretion and White Collar Crime

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

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

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

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

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

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

The Supreme Court Limits Prosecutorial Discretion

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

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

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

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

In 2014, the Supreme Court decided Bond v. United States. (Although not really a white collar case, Bond is instructive as part of the same trend at the Court.) In Bond a jilted wife tried to injure her husband’s lover by sprinkling some caustic chemicals on her mailbox and doorknob. The chemicals caused only a slight skin irritation on the woman’s thumb that was easily treated with cold water. Federal prosecutors subsequently charged Bond using a felony statute that prohibits the use of chemical weapons and carries a penalty of “any term of years” in prison.

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

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

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

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

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

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

The Future of Prosecutorial Discretion

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

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

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

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

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

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

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

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

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

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

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

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

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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.


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.


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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Corporate Crime, Prosecutorial Discretion, and Separation of Powers: U.S. v. Fokker Services

Many criminal investigations of corporations are resolved by a Deferred Prosecution Agreement (DPA) or its less frequently used cousin, a Non-Prosecution Agreement (NPA). These are essentially negotiated settlements between the Department of Justice and the defendant, in which the company agrees to certain sanctions and changes in behavior in exchange for avoiding criminal penalties.

Typically the terms and conditions of such agreements are set by the prosecutors. Decisions about whether to charge at all, what charges to bring, and the terms of any resolution are at the core of prosecutorial discretion. But in 2015, in an unprecedented decision, U.S. District Judge Richard J. Leon rejected a DPA between prosecutors and a company called Fokker Services because he thought the company had gotten too sweet a deal. The U.S. Court of Appeals for the District of Columbia Circuit recently reversed that decision, chiding the judge for overstepping his bounds.

As I wrote in this earlier post, I have concerns about the increased use of DPAs and the resulting effect on the criminal justice system. But regardless of how one feels about the merits of DPAs, the D.C. Circuit’s decision is a welcome reaffirmation of the importance of separation of powers and the proper role of the judiciary.

DPAs, NPAs, and Corporate Crime

The use of DPAs has been on the rise over the past decade ever since the Arthur Andersen debacle. The huge accounting company was driven out of business – and tens of thousands of people lost their jobs – as a result of a criminal prosecution that was later thrown out by the Supreme Court. To avoid such a potential “corporate death penalty,” companies have a tremendous incentive to enter into a DPA and avoid a criminal conviction.

In a DPA, the government files criminal charges but agrees to put the prosecution of those charges on hold. Under the agreement, the company generally admits to the charges and may agree to pay fines or restitution, undergo internal reforms, cooperate in the prosecution of individual employees, and take other remedial steps to atone for its misbehavior. In many DPAs the government requires the company to hire a monitor, at the company’s expense, to oversee its compliance with the agreement. The government agrees that when the DPA ends, usually in a few years, it will dismiss the criminal charges if the company has fully complied.

A NPA may contain the same kinds of terms as a DPA. The biggest difference is that in a NPA there are no charges filed with the court – it’s just a private agreement between the company and the prosecution. A NPA thus lacks the imprimatur of a court proceeding and the gravity of charges actually being filed. And because there is no public court filing, a NPA could potentially take place without the public even knowing about it.

Fokker Services logo

United States v. Fokker Services B.V.

Fokker Services is a Dutch aerospace services company. In 2010 Fokker self-reported to the government that it may have violated federal export control laws in its dealings with Burma, Sudan and Iran. Over the next four years, Fokker cooperated with the government in a wide-ranging investigation of this misconduct. The investigation uncovered more than 1,000 illegal transactions, from which Fokker earned about $21 million.

As part of its cooperation, Fokker instituted a number of internal reforms. It also fired its president and demoted or reassigned a number of other employees involved. The government described Fokker’s remedial efforts as “a model to be followed by other corporations.” In light of this cooperation, the government negotiated a DPA with Fokker under which the company would continue its compliance and remediation efforts for another 18 months and pay a $21 million fine.

Pursuant to the DPA, the government filed a one-count criminal information against Fokker on June 5, 2014. Once federal charges are filed, the Speedy Trial Act normally requires that trial begin within seventy days. But the Act excuses any period of delay “during which prosecution is deferred by the attorney for the Government pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct.” It’s that “approval of the court” language that led to the dispute in this case.

After the charging document and DPA were filed, Judge Leon indicated he might withhold his approval. That would have the effect of torpedoing the DPA, because the Speedy Trial Act clock would keep running and the government would be forced either to take the case to trial or dismiss it long before the eighteen-month term of the DPA had expired. At a series of hearings Judge Leon said he thought the DPA was “too good a deal for the defendant.” He expressed concern about why no individual employees had been charged and why the government had not required Fokker to hire a corporate monitor.

After months of consideration, on February 5, 2015 Judge Leon denied the motion to exclude time under the Speedy Trial Act. He wrote it was not in the interest of justice to approve the DPA when Fokker had engaged in such egregious conduct and was being punished only “anemically.” He concluded the DPA was “grossly disproportionate to the gravity of Fokker Services’ conduct in a post-9/11 world” and “[did] not constitute an appropriate exercise of prosecutorial discretion.”

This marked the first time a district judge had denied a motion to exclude time under the Speedy Trial Act due to the judge’s disagreement with the terms of a DPA. Both the United States and Fokker appealed the judge’s order.

The D.C. Circuit’s Decision

The D.C. Circuit reversed Judge Leon’s ruling in an unanimous opinion written by Judge Sri Srinivasan (who reportedly was on the very short list for President Obama’s most recent Supreme Court nomination). The Court went out of its way to note it was not agreeing or disagreeing with Judge Leon’s views about the merits of the DPA, and that it had no occasion to do so. The point was that a judge has no business making such a judgment.

As the Court of Appeals noted, it has long been settled that criminal charging decisions – including what kind of charges to bring, when to dismiss charges, and whether to bring charges at all — are almost exclusively an Executive Branch prerogative. These decisions involve many considerations including the strength of the evidence, deterrence value of a prosecution, allocation of scarce resources, and law enforcement priorities. The Judiciary is ill equipped to make these judgments, and absent some kind of abuse or a constitutional violation a court will almost never second- guess such decisions.

Judge Leon, however, rejected the Fokker DPA because he thought the government had not been tough enough on Fokker and its employees. The Court of Appeals made it clear that was not the judge’s call. Whether he personally agreed with the terms of the agreement was irrelevant; Judge Leon should not have “assume[d] the role of Attorney General” by questioning the prosecutors’ decisions.

The approval of the court under the Speedy Trial Act, the Court of Appeals held, should simply be to ensure that the proposed DPA is actually for the legitimate purpose of allowing the defendant to “demonstrate his good conduct.” If it is, the judge’s inquiry is at an end. In questioning the terms of the deal and the government’s charging decisions, the Court of Appeals held, Judge Leon “significantly overstepped [his] authority.”

Consequences of the Court’s Decision

The D.C. Circuit’s decision is a welcome reaffirmation of the importance of separation of powers. Although judicial scrutiny of DPAs might have some facial appeal, it would actually raise a host of problems. Not only do judges simply lack the necessary information to make such decisions, but judicial intervention would have a number of other negative consequences.

When criticizing the lack of a corporate monitor in the Fokker DPA, Judge Leon remarked, “One can only imagine how a company with such a long track record of deceit and illegal behavior ever convinced the Department of Justice to agree to that!” But that’s precisely the point – the judge can only imagine. He doesn’t have the information necessary to make an informed judgment about the terms of the deal or why the government might have made that decision.

There may be many explanations for a DPA that looks lenient to the outside world. The alternative to a deal is a trial, where the government must prove its case beyond a reasonable doubt. Prosecutors may have information about possible difficulties in meeting that burden — such as problems with particular witnesses or the admissibility of certain evidence – unavailable to those not involved in the investigation. These considerations will always influence the government when deciding what kind of a deal it should make, whether it’s a plea agreement or a DPA, but likely will be unknown to the judge.

The government also must make judgments about the allocation of prosecution resources, law enforcement priorities, and deterring other wrongdoing while incentivizing cooperation. As the Court of Appeals noted, these are core functions of the Executive Branch, charged with faithfully executing the laws. A judge generally lacks much of the information necessary to make such judgments, and even if the judge had some relevant information, it is not the court’s place to intervene.

Apart from the structural separations of powers concerns, judicial review of the terms of DPAs would also have a number of practical negative consequences. Uncertainty is never a plus for parties trying to negotiate a resolution. Defendants would rightly be more cautious and reluctant to cooperate if they knew that whatever the government is offering them is not really the last word and that a judge might second guess whatever agreement they make.

Another likely, and undesirable, consequence of judicial scrutiny of the terms of DPAs would be a shift to the use of NPAs instead. Non-prosecution agreements do not require any charges to be filed with the court, and so do not require any court approval. Judge Leon himself noted that, “this Court would have no role here if the Government had chosen not to charge Fokker Services with any criminal conduct – even if that decision was the result of a non-prosecution agreement.”

Prosecutors can require as part of a NPA that defendants waive the statute of limitations, so they could still preserve the right to file charges later if the defendant failed to live up to the agreement. And the other terms of the agreement may be largely the same, allowing the prosecution to achieve the same goals as a DPA.

The primary difference is that a DPA generally is filed with the court and made public. A NPA could remain entirely private if the parties so chose. If DPAs were routinely second-guessed by trial judges, the logical response would be for prosecutors and defendants to shift to NPAs in order to avoid any such judicial interference. This could result in more secret deals and in less information being available to the public about any resolutions. The irony, therefore, would be that by purporting to subject the terms of these agreements to greater scrutiny, judicial review likely would instead drive such agreements underground and out of public view entirely.

There are legitimate concerns about the increasing use of DPAs. Companies face tremendous pressure to resolve criminal investigations short of a trial, which gives prosecutors enormous leverage. DPAs risk transforming the criminal justice system into a sort of regulatory, administrative regime run by prosecutors relieved of their burden of proving criminal conduct beyond a reasonable doubt.

But having judges play Monday morning quarterback concerning prosecutors’ charging decisions is not the answer. It’s fortunate the D.C. Circuit agreed.

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From Speaker to Smurf: Examining the Charges Against Dennis Hastert

The criminal charges against Dennis Hastert include structuring and false statements

Former Speaker of the House Dennis Hastert

The criminal charges against former Speaker of the House Dennis Hastert have raised some interesting questions, including questions about whether the case should have been brought at all. Hastert was arraigned last week in Chicago on an indictment charging him with one count of illegal structuring of bank transactions and one count of lying to the FBI. Hastert served in Congress from 1981 to 2007 and was Speaker from 1999 to 2007.

The indictment charges that over several years Hastert withdrew large amounts of cash in order to make payments to someone identified only as “Individual A.” Hastert allegedly had agreed to pay Individual A $3.5 million to compensate for, and keep concealed, prior misconduct by Hastert against Individual A. Although the indictment does not reveal the nature of the misconduct, several news outlets have reported that it involved Hastert sexually abusing a male student when Hastert was working as a high school teacher and wrestling coach in Yorkville, Illinois between 1965 and 1981.

From June 2010 through April 2012, Hastert allegedly made fifteen separate withdrawals of $50,000 in cash from several different banks and gave that cash to Individual A. Federal regulations require banks and other financial institutions to report any cash transactions in excess of $10,000, and in April 2012 the banks apparently questioned Hastert about the large cash withdrawals.

After the banks started asking questions, Hastert allegedly began withdrawing cash in amounts just under $10,000, in order to avoid the bank reporting requirements. The indictment charges that he made at least 106 such withdrawals between 2012 and 2014, again providing all the cash to Individual A. Hastert is alleged to have paid a total of $1.7 million in cash to Individual A over more than four years.

In December 2014, the FBI interviewed Hastert concerning his unusual banking transactions. During that interview, Hastert told the FBI agents he made the withdrawals because he did not trust the banking system and that he was keeping the cash for his own use.


The Criminal Charges Against Dennis Hastert 

Structuring: The structuring statute that Hastert is charged with violating, 31 U.S.C. § 5324, is part of the system of laws and regulations used to combat money laundering. In today’s economy, legal transactions involving large amounts of currency are relatively rare. But certain kinds of criminal activity, such as narcotics trafficking and organized crime, may generate enormous quantities of cash.

Having all of this cash is no fun if you can’t spend it without arousing suspicion. Criminal operations therefore need to get their cash into the legal financial system and make it appear legitimate. That’s where the money laundering laws come in. Money laundering takes aim at criminal activity from a different direction: it focuses not on the crimes that generate the money but on trying to freeze criminal proceeds out of the banking system and make it impossible for criminals to enjoy the fruits of their illegal activity.

As part of this effort, banks are required to file a Currency Transaction Report (“CTR”) providing details about any cash transaction in excess of $10,000. This allows the government to track large flows of currency through the economy – not because dealing in cash is illegal, but because it is unusual and suggests potential criminal activity. The filing of a CTR does not mean a crime has been committed. It is simply a flag that something is going on that might merit a closer look.

Criminals would obviously prefer that CTRs not be filed, because they do not want to draw attention to themselves and their large, unexplained piles of cash. Thus the crime of structuring was born.

Suppose I am a drug dealer with $100,000 in cash from my illegal drug operations. I’d like to get that cash into a bank account so I could write checks, make wire transfers, and otherwise spend it without arousing suspicion. But if I take my duffel bag full of $100,000 in white-powder-encrusted tens and twenties and plop it down on the bank teller’s counter, people are (hopefully) going to start asking uncomfortable questions – not to mention filing CTRs.

One way I can avoid this problem is to get eleven of my associates to take $9,000 each and deposit the money in eleven different banks. No CTRs will be filed, and all of my money is now in the banking system ready for me to enjoy. This is the crime of structuring: designing your bank transactions specifically to avoid the filing of CTRs.  It applies to both deposits and withdrawals.

Structuring is also known as “smurfing,” from the cartoon involving those cute little blue creatures, “The Smurfs.” I’m not sure how this nickname arose, but it may have to do with the image of many people scurrying around town to different banks to make deposits, just as the Smurfs used to scurry around their little Smurf village doing . . . whatever Smurfs do.

Hastert appears to have been engaged in textbook smurfing. He was withdrawing $50,000 in cash at a time, until the bank started asking questions. Then he deliberately reduced the amount of his withdrawals to just under $10,000, in order to avoid any more questions and to avoid the filing of CTRs.

False Statements:  The other charge in the indictment is a violation of 18 U.S.C. § 1001, false statements. This is a widely-used white collar statute that prohibits knowingly providing material false information to the government. It differs from, and is much broader than, perjury, because statements do not need to be under oath. Lying to the FBI during an interview about something material to their investigation falls squarely within § 1001, and that is the basis of the charge against Hastert.

hastert headshot

Issues Raised by the Hastert Indictment

One thing I find remarkable about this and many other white collar cases is that an accomplished and savvy person – in this case, someone who for years was third in line to be U.S. President — ends up committing such a dumb crime. As a former Member of Congress, Hastert had to know that his cash transactions would raise flags. Even if he were determined not to leave a paper trail by simply writing checks, he could have used any number of more sophisticated and still secret ways to pay off Individual A. And when the FBI comes calling, why not decline to be interviewed, or simply call your lawyer? Is there some hidden, psychological desire to be caught involved here? If Dostoevsky were still around and had a blog, he’d have a field day.

An interesting question that remains unanswered is: how did the government learn about Individual A and his deal with Hastert? A bank report likely led the FBI to focus on Hastert’s financial transactions, but how did they progress from learning about the cash withdrawals to learning what Hastert was doing with the money? Did Individual A came forward independently (seems unlikely) to report the arrangement to the FBI? Did they tail Hastert and witness him making a payment to Individual A? Did they use phone records or some other investigative tool? We don’t yet know.

A related question concerns the treatment of Individual A by the prosecutors. Will he be charged with any crimes? Has he already pleaded guilty, with the proceeding under seal? Or did the government conclude that he committed no crime, or agree to grant him immunity?

Some have argued that Individual A was plainly guilty of blackmail or extortion, and some (including Hastert himself) have suggested that Hastert was a victim, too. But we would need to know a lot more about the dealings between Hastert and Individual A, and how their arrangement came about, before making such a judgment. A mutual, consensual agreement, similar to an out-of-court settlement, would not amount to extortion.

Although there are lots of questions, it appears we won’t learn much more about Individual A any time soon, if ever. Prosecutors apparently have sought a protective order to cover any information they provide to the defense, to ensure that no one not involved in the case can see the material. If prosecutors have some kind of agreement with Individual A, it appears to include preserving his privacy for as long as possible.

Another interesting aspect of the case is the somewhat unusual application of the structuring laws. The money involved in Hastert’s cash transactions was not generated by criminal activity; this was “clean” money that legitimately belonged to Hastert. To that extent, the structuring charge falls outside of the heartland of activity at which the statute was primarily aimed.

Nevertheless, Hastert’s actions are a clear-cut case of smurfing. Unlike some other money laundering statutes, structuring does not require that the money involved be criminal proceeds. The purpose of the law is simply to enable the government to track large flows of cash through the banking system. Structuring thwarts that government interest, whether the money is clean or dirty. Even if the source of the cash is perfectly legal, large withdrawals may be a sign of other criminal activity.

The government had legitimate reasons to be questioning Hastert’s cash withdrawals. The transactions could have indicated that he was being extorted, perhaps even over something related to his time in Congress, or that he was involved in some other kind of criminal activity.   That the government was asking these questions does not indicate any kind of overreach.

Should Hastert Have Been Prosecuted?

The issue then becomes whether, once the nature of the transactions was revealed, criminal charges should have been filed. In the wake of the indictment, some have questioned the decision to prosecute. They argue that Hastert appears to be a victim, that as a former powerful politician he has been unfairly singled out, and that the case is not a wise use of prosecutorial resources.

It’s certainly true that not every instance of structuring results in a criminal prosecution. And if every witness who lied to the FBI during an interview were charged with false statements, federal prosecutors would have time to do little else.

Deciding whether to file charges in such a case requires the sound exercise of prosecutorial discretion. On this point I agree with another former AUSA, Jeffrey Toobin, who wrote in the New Yorker that he would not have hesitated to bring this case.

A number of factors would enter into the charging decision. One would be the length of time and the number of violations – more than a hundred structured transactions over more than two years. This was not a one-off situation; Hastert knew what he was doing and did it repeatedly over a long period of time.

Another factor would be the nature of the misconduct that Hastert was concealing. Any sexual abuse that took place while he was a high school teacher could almost certainly not be prosecuted now due to the statute of limitations. But if Hastert committed more recent crimes in order to cover up that activity, prosecuting those crimes can serve the interests of justice.

Prosecution of cover-up crimes such as false statements or obstruction of justice does sometimes serve to ensure that defendants who committed crimes that are too old to be prosecuted do not entirely escape punishment. Particularly where the past criminal conduct was so egregious, that would weigh heavily in the decision about whether to prosecute. To me, at least, as a prosecutor this charging decision would feel very different if Hastert had been covering up past conduct that was legal but just embarrassing, such as an extra-marital affair.

Another factor in the charging equation would be Hastert’s outrageous lies to the FBI. This was not a hapless, unsophisticated defendant ensnared by some wily FBI agents. A former Member of Congress knew what he was doing, knew his legal options in terms of talking to the FBI, and knew the potential consequences of lying.

It’s also worth noting that the prosecutors, if they were truly vindictive and out of control, could have been a lot harder on Hastert. They likely could have charged him with more than 100 counts of structuring, one for each withdrawal. Instead they chose to charge the entire two-year structuring scheme as a single count, exposing him to a maximum of five years in prison for structuring rather than more than 500.

Personally I find it hard to feel sorry for Hastert. But to the extent the critics are correct and Hastert deserves some sympathy for the situation he was in, those considerations may be taken into account when it comes to sentencing, or in fashioning an appropriate plea agreement.  That doesn’t mean the charges themselves were not fully appropriate.

And finally, speaking of plea agreements, a quick guilty plea is by far the most likely outcome in this case. There’s not much in the way of a defense apparent from the indictment, and Hastert will almost certainly want to avoid a public trial where Individual A would testify about the past misconduct and their agreement. Hastert’s best chance to avoid that information becoming public is to take a quick plea.

But whether or not that happens, information like this has a way of coming to light. I expect before the case is over we will know a great deal more about Individual A and the circumstances that brought Hastert to this unhappy point.

Update 10/28/15:  Hastert today pleaded guilty to one count of structuring his banking transactions. 

Update 4/27/16: Hastert was sentenced today to fifteen months in prison, followed by two years of supervised release. He was also ordered to receive sex-offender treatments and pay $250,000 in fines. 

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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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