The Rush to Criminal Remedies

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

The Gray Areas

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

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

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

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

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

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

The NCAA Corruption Case

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

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

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

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

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

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

The Varsity Blues Case

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

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

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

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

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

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

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

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

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


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

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

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

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

The Curse of Binary Thinking

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

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

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

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

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

The Loss of Social Control

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

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

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

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The Julian Assange Indictment and Freedom of the Press

Last month the Justice Department announced a superseding indictment of Julian Assange, the founder of Wikileaks, charging him with multiple violations of the Espionage Act for soliciting and disclosing classified materials. The case has raised concerns over whether the government might apply the same prosecution theories to mainstream journalists who obtain and publish classified information. Although prosecutors are unlikely to go there, the Assange indictment highlights how much we rely on prosecutorial discretion to contain the sweeping and potentially troubling reach of certain criminal statutes. In an age where faith in the sound exercise of that discretion is eroding, prosecutors simply saying “we wouldn’t do that” may cease to be a satisfactory answer.

Julian Assange

Julian Assange

The Assange Indictment

In 2010 Julian Assange received hundreds of thousands of classified documents from Chelsea Manning, then known as Bradley Manning, who worked as an intelligence analyst for the army. Manning unlawfully sent Assange materials related to the U.S. wars in Iraq and Afghanistan and the detention facility at Guantanamo Bay, as well as thousands of classified State Department cables. Assange released the documents on Wikileaks during 2010 and 2011. It was one of the largest breaches of classified information in U.S. history.

In 2013 Manning was convicted of multiple felonies, including espionage. It appeared Assange would not be prosecuted. But this past April the Justice Department unveiled a sealed indictment charging Assange based on his dealings with Manning. Initially Assange was charged only with conspiracy to violate the Computer Fraud and Abuse Act, for helping Manning try to crack a computer password in order to hack into additional classified files. That effort was unsuccessful, but Assange was charged with conspiracy for taking part in the attempted hacking with Manning.

That initial indictment of Assange generally met with cautious approval from the media because DOJ had not charged him for obtaining or publishing any of the leaked materials. But on May 23, the Justice Department returned a superseding indictment. The new 18-count indictment includes multiple charges that Assange violated the Espionage Act by encouraging Manning to obtain classified information and leak it to Assange. It also charges Assange with three Espionage Act violations for publishing classified materials that revealed the identities of confidential sources who had helped the United States, including Afghans, Iraqis, journalists, human rights advocates, and religious leaders. The government alleges that by publishing that information, Assange knowingly placed those sources in grave danger.

The superseding indictment has caused great concern in the journalism community. National security reporters routinely receive and publish classified information, and may encourage sources to provide them with that information. What would prevent the Justice Department from applying the same legal theories used in the Assange case to prosecute a more mainstream journalist at the Washington Post or New York Times? The answer may be: legally, not much.

The Espionage Act

The Espionage Act, 18 U.S.C. 793, is a World War I-era law that prohibits obtaining or disclosing national security information with the intent or reason to believe it could be used to harm the United States or benefit a foreign nation. Several sections of the statute apply to those who are authorized to have the information but then improperly disclose it to others. These are the sections that may be used to prosecute those who leak classified information to a reporter. Most of the charges against Assange allege that he violated these sections by aiding and abetting or conspiring with Manning to have her leak the information to Assange.

Section 793(e) of the Act applies to those who are not otherwise authorized to have the information but obtain it and then transmit or communicate it to others also not authorized to have it. This is the section that potentially could apply to a journalist who receives a leak of classified information and then publishes it so others can read it. Assange is charged under this section for publishing only the materials that revealed the identities of confidential intelligence sources. He is not charged for publishing any of the hundreds of thousands of other documents he received from Manning and posted on Wikileaks.

The Espionage Act and the Press

Prior to the Assange case, the government had never prosecuted someone who at least claimed to be a journalist for publishing classified information received from a source. But the possible application of the Espionage Act to such a journalist has always been lurking in the background.

The concerns raised by the Assange indictment should be placed in the historical context of battles between the press and the executive branch that began escalating during the Obama Administration. The Obama Justice Department significantly expanded the use of the Espionage Act to prosecute leakers of national security information. You often hear that the Obama administration pursued more leak prosecutions than every prior administration combined. That’s true, but it was still only eight prosecutions, or about one a year. Even this relatively modest pace of cases resulted in blistering attacks from the media, which claimed the administration was engaging in a “war on the press” by trying to silence leakers.

There was arguably a technological rationale for the Obama administration’s change in policy. There have always been leaks of classified information to the press. But in the Watergate era, for example, if a reporter received classified information he or she generally would do some work to verify it. The reporter would also call government officials about the information and request comment. That at least gave officials the opportunity to try to persuade the reporter not to publish the information or to delay publication because it would jeopardize national security. Historically there have been times when the mainstream press honored such requests.

With the rise of the Internet, those safety valves have been largely obliterated. Now there are many websites and individuals who consider themselves journalists who are happy to take leaked information and just throw it up on their website. That’s what Assange did with the materials he received from Manning, as well as with the stolen Democratic emails and documents he received from Russian hackers during the 2016 presidential election. It made some sense for the Obama administration to try to plug serious leaks by cracking down on leakers themselves. In the age of Wikileaks, the only opportunity to prevent potentially damaging information from being immediately released worldwide, to friends and enemies alike, is to prevent it from ever being leaked in the first place.

Risen? Rosen? The Cases of the Two James

Leak prosecutions in the Obama years were brought only against the leakers, not against journalists. But they still caused considerable tension between the administration and the journalism community. For example, prosecutors had a protracted legal and public relations battle with New York Times reporter James Risen. Former CIA agent Jeffrey Sterling was prosecuted under the Espionage Act for leaking information to Risen that showed up in his book, State of War. Prosecutors wanted Risen to testify that Sterling was his source, and Risen refused. After a three-year battle, prosecutors obtained a court order that Risen had no privilege to protect his source and could be compelled to testify. However, faced with the prospect that Risen would refuse and force the government to have him jailed for contempt, the prosecutors blinked. They decided not to call Risen, and convicted Sterling at trial without Risen’s testimony. Risen was never criminally charged or forced to testify, but condemned Obama as the “greatest enemy to press freedom in a generation.”

But probably the most notorious incident involving the press during the Obama years was the 2010 prosecution of State Department analyst Stephen Kim. Kim was indicted for leaking information about North Korea’s nuclear program to Fox News reporter James Rosen. Prosecutors later obtained a search warrant for Rosen’s email account to look for communications with Kim. In the search warrant affidavit they characterized Rosen as a criminal co-conspirator or aider and abettor for encouraging Kim to leak the classified information to him. Legally this description was completely accurate, and Rosen was not prosecuted. But characterizing a journalist as a criminal co-conspirator in a search warrant affidavit caused a huge controversy and is still repeatedly cited as evidence that the Obama administration was hostile to the press.

According to news reports, the Obama administration also considered prosecuting Assange for his work with Manning but ultimately declined, believing the case would come too close to treading on freedom of the press. But the Trump administration revisited that decision. The legal theories used to prosecute Assange are largely the same as those contained in the Rosen search warrant: that he aided and abetted or conspired with the leaker who violated the law by disclosing the classified information. But the Assange indictment goes one step further by also charging Assange based on publishing a portion of the information, not just receiving it.

Meanwhile, the Trump administration has further accelerated the pursuit of leakers. In 2017, Attorney General Sessions announced the Justice Department had tripled the number of leak investigations.  When announcing the Assange indictment, DOJ officials said they have brought four leak prosecutions in two years, double Obama’s pace.

Is Assange a Journalist? That’s the Wrong Question

When announcing the Assange indictment, DOJ officials said they don’t consider Assange a journalist. Much of the commentary about the case suggests it should not be worrisome because Assange is not a true journalist. But whether or not he’s a journalist is really the wrong question. The First Amendment does not refer to “journalists” in the protections it provides for free speech and a free press. And the Supreme Court has made it clear that the First Amendment applies equally to the New York Times and to a pajama-clad blogger writing in his basement.

Defining who is a “journalist” is a thorny, and perhaps constitutionally insurmountable, problem. For years there have been efforts on Capitol Hill to pass a reporter’s shield law that would protect journalists from being compelled to identify their sources, at least in some cases. But those efforts have always stalled, due at least in part to the difficulty of defining who is a “journalist” entitled to the protection of the law.

Nearly fifty years ago, in the landmark case of Branzburg v. Hayes, the Supreme Court held that the Constitution does not create a reporter’s privilege. At the time, the Court noted that trying to define who is a “newsman” worthy of any such privilege “would present practical and conceptual difficulties of a high order” and would be a “questionable procedure.” That was at a time when the news media consisted largely of local newspapers, radio, and three television networks. In the age of the Internet, social media, and citizen journalism, those difficulties are exponentially greater. A definition necessarily excludes someone and puts the government in the position of deciding who it deems a “real” journalist worthy of a special legal privilege. That process itself raises grave First Amendment concerns.

There are certainly ways in which Assange differs dramatically from a mainstream journalist. He generally just dumps leaked materials on the Internet with no screening, verification, or reporting. He acts more like an agent of a hostile foreign power than a reporter. Most of his activities seem worthy of little sympathy. As the Assistant Attorney General said when announcing the Assange indictment, no responsible person, whether or not a journalist, would disclose the names of confidential intelligence sources in a war zone, knowingly exposing them to grave danger.

But the issue is not whether Assange is a journalist or whether his behavior is reprehensible. It’s whether the legal theories used to prosecute Assange also could be employed to prosecute a mainstream journalist, and thus whether the Assange indictment creates a potentially dangerous precedent. The answer appears to be yes.

The Tension Between the Press and the Government

There has always been a healthy tension between the press and the government. The government tries to keep some secrets. Most would agree that it tries to keep far too many and that it classifies too much information. Sometimes it tries to keep information secret not because its release would really damage national security but simply because it would be embarrassing or politically damaging.

Our robust free press and investigative journalism have always played a vital role in fighting excessive government secrecy and ferreting out important information. Scandals such as Watergate and the government excesses during the Iraq war only came to light through the efforts of dogged journalists. In many such cases that work involves the journalists receiving, and reporting on, leaked classified information.

On the other hand, almost all would agree there are some secrets the government should be able to keep. Leaks of the most sensitive military and intelligence information could genuinely harm our national interests or put those serving our country in harm’s way. And if we agree the government must be able to keep some secrets, then we should be able to agree that in appropriate cases the government may prosecute those who illegally disclose such vital information and try to deter others from doing so.

It’s also clear there can be no absolute immunity for journalists from criminal prosecution related to their work. To take an extreme example, a journalist could not hire a burglar to break into an office to steal confidential files, publish them, and then claim immunity from prosecution based on freedom of the press. If Assange had obtained classified information and hand-delivered to agents of the Taliban, it seems clear that he could be prosecuted for espionage. Why should the result be different because he chose to deliver the materials by posting them on the Internet?

The Role of Prosecutorial Discretion

In the end, these cases are all about line drawing. An investigative journalist at a mainstream newspaper regularly receives classified material. He or she may request such materials from a source, even try to cajole the source into obtaining more such materials, directly or subtly. At some point such encouragement or active participation could cross the line into soliciting criminal activity. What prevents such cases from being charged, at least up to this point, is respect for the role of the press and the sound exercise of prosecutorial discretion.

Government officials went out of their way to emphasize this when announcing the Assange indictment. They noted that prosecutorial decisions in each case have to be evaluated on their specific facts, and that mainstream journalism has nothing to fear from the Assange indictment. But the legal theories are there, and always have been.

This really isn’t that surprising. Many criminal statutes contain sweeping prohibitions that could potentially apply to a given case but prosecutors exercise their discretion not to pursue it. In particular, prosecutors traditionally have respected the role of the Fourth Estate. For example, although (as the Risen and Rosen cases demonstrated) journalists have no legal privilege to refuse to reveal their sources in federal cases or to shield their communications in general, DOJ has voluntary internal guidelines to ensure that seeking information from a reporter will be extremely rare and will require approval at the highest levels. This respect for the role of the press is part of the healthy push and pull between the press and the government that has always existed.

It’s probably true the Trump administration will not seek to expand the theories used against Assange to prosecute traditional journalists. Certainly there would be a huge outcry, even from the president’s friends in the conservative media. And there would be substantial constitutional defenses to any such case. This was not a routine leak, but one of the largest security breaches in U.S. history. And however we define journalism, most of Assange’s actions stray far from that concept.

But reliance on prosecutorial discretion requires trust that discretion will be exercised dispassionately, with some wisdom, humility, and historical perspective. Considering this president routinely refers to the press as the enemy of the American people and accuses the press of treason, you can’t blame journalists for being a little nervous.

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