Some reflections on the Kennedy retirement

My thanks to Craig Fahle of the Craig Fahle Show and to Devin Scillian, host of Flashpoint on NBC 4 in Detroit.  Both invited me to discuss Justice Kennedy’s retirement (Craig Fahle Show here; Flashpoint here)  Craig and Devin are both intelligent and skilled interviewers, and I enjoyed being on their programs this past week.

Now that we have had a few days to digest the news, here are a few initial thoughts on Kennedy’s retirement, some of which overlap with my media appearances and some of which go farther.

First, conservatives are rightly excited about this opportunity, and Liberals rightly concerned.  But whether this vacancy causes truly seismic shifts in constitutional law will depend upon several factors, some of which may be unforeseeable at this moment.

Justice Kennedy confounded labels, but he voted with conservatives in numerous cases that are important to the Legal Right (see, e.g., United States v. Lopez, the dissent in NFIB v. Sebelius, Citizens United v. FEC).  In cases where Kennedy stayed to the Right, it is unlikely that his departure will result in much change to those areas of constitutional law.  As others have duly noted, the more dramatic shifts will have to occur in areas of individual rights where Kennedy took positions at odds with the Court’s conservatives (e.g., abortion, LGBT rights, the Eighth Amendment, etc.).

But even here, Kennedy confounds. Compare and contrast, for example, his vote in Casey with his vote in Gonzales v. Carhart; or his votes in Atkins, Simmons, and Kennedy with his refusal to join the new movement against the death penalty’s constitutionality per se; or his votes in Gratz and Grutter with his vote in Fisher II.  He’s no darling of conservatives, but he also was no perpetual villain.

Moreover, cases do not magically appear at the Supreme Court for resolution.  These issues often take years to wind through, and percolate in, the lower court systems.  And even then, the Supreme Court may not be ready to address the issue, or it may come to the Court in a form that makes it undesirable as a vehicle for resolving a particular issue.

So, how strongly that the Earth quakes this Fall may depend very much upon the subject matter under consideration, whether and how the issue arrives at the Court, and whether the Court is prepared to take up an issue that may have enormous social and political consequences.

Second, whether the ground quakes in these areas of law may, as some of the public conversation is describing, also depend upon whether the need to placate Senators Collins and Murkowski (or others) will result in the nomination of someone who will commit to respecting the Court’s precedents on abortion rights or some other matter.  But it may also depend upon whether Chief Justice Roberts emerges as a Kennedy-esque swing vote, a matter that is often overlooked in the public debate over the next nomination.  The Chief may not be nearly so confounding as Justice Kennedy, but I question whether he is as predictable as, say, Justices Thomas or Gorsuch.

As I have suggested, I think that the Chief cares deeply about the Court’s integrity and institutional legitimacy.  In some cases, that may mean upending bad precedents (his opinion in Trump v. Hawaii, for example, expressly disavowed the notoriously wrong Korematsu decision).  But in other cases, it may mean looking at the broader political and social consequences of the Court’s decisions.  Recall that Chief Justice William Rehnquist repeatedly questioned the status of Miranda v. Arizona as a constitutional rule.  Then, when the question was put squarely before the Court in Dickerson v. United States, Rehnquist wrote the opinion for six other justices that said Miranda was a constitutional rule.

So while it is likely that Chief Justice Roberts remains a solid conservative vote, it is also likely that Roberts—who clerked for and then succeeded Rehnquist — has a sense of the political times in which we live, and the role of the Court in those times.  If Roberts carries the mantle of judicial statesmanship, it may be he — not the latest Trump appointee — who holds the Court’s future in his hands.

Third, Republicans may be celebrating, but they should view this moment with some trepidation.  In recent elections, voter energy with respect to the Supreme Court has generally favored Republicans.  All of that energy was leading to this moment, which should be gratifying to those who have voted Republican because of this issue (including those Republicans who despise Donald Trump but voted for him solely on the basis of potential Supreme Court picks).  But once the moment passes, what then?  If the President fills Kennedy’s seat with a reliable conservative, and that happens in, say, September, where does the energy on that issue go when the midterms arrive in November?

One plausible scenario is that Republican intensity on this issue will be diminished once conservatives have amassed five reliably conservative votes on the Court.  Voter intensity with respect to the Court, then, will naturally shift to the Left, so the argument runs.  And if the Left can mobilize voters on this issue in much the same way that the Right did for so many years, the political effect of the Kennedy retirement could be that it helps Democrats, at least in the short run.  Republicans could counter this with a narrative that continues to make the Court important to their voters — to say that, among the Court’s conservatives, one of these is not like the others, so future reinforcements are necessary. Problem is, that messaging would contradict the other messaging that says the Court is now firmly in reliable conservative hands.

So although this is a proud and important moment for legal conservatism in America, it could actually be a galvanizing moment for Liberalism and the Democratic Party, if the Left can follow the Right’s playbook effectively.

Finally, Justice Kennedy was known as a good and decent man who valued civility in public life.  In that sense, the contrast with the man who will appoint his successor could not be more stark.  As someone who worked on many cases at the Court — and who now teaches students about the Court and its role in American law and life — I join others in expressing my gratitude to Justice Kennedy for his distinguished service, and for his commitment to civil discourse about the Constitution and the rule of law.



L’affaire Mickelson and mens rea in the Rules of Golf

Something rather extraordinary happened on Saturday at the United States Open at Shinnecock Hills.  Phil Mickelson, putting for bogey on the 13th Hole, ran his putt past the hole, and it began to speed down the green’s severe, windswept slope.  The ball would almost surely have run off of the green, toward the nearby bunker, leaving Mickelson with a very long putt or pitch shot for his sixth stroke.  Mickelson, however, jogged toward the ball as it began to roll downhill, and, while it was moving, putted the ball back toward the hole.  He then marked the ball when it came to rest above the hole, and eventually holed out after eight strokes.  (See Golf Channel story and video here).

Mickelson, one of the greats of the game and generally beloved by golf fans, may have saved a snowman, but he clearly violated golf’s rules.  After his round of 81, he was questioned about the incident.  Mickelson explained that he did not want to keep going “back and forth” on the hole, and, confident that he would have been left in a worse position had he allowed the ball to roll to a stop, essentially calculated that his score on the hole would be better even with the two-stroke penalty that would surely ensue (which he said he “gladly” accepted under the circumstances).  Mickelson therefore admitted that he violated the rule intentionally, but took advantage of the rules in order to possibly save strokes on the hole.

The United States Golf Association assessed a two-stroke penalty, giving Mickelson an ultimate 10 on the 13th, but did not disqualify him.

While I believe the USGA ultimately reached the right result, its reasoning and rules on this matter bear scrutiny, as  many have suggested that Mickelson should have been ousted from the tournament.  The question is not whether Mickelson violated a rule and should have been penalized.  No one — not even Mickelson — contests that.  The questions, rather, concern which rule that he violated, and what the penalty ought to be.  That, it turns out, is complicated, and turns to some extent on Mickelson’s state of mind at the time.

Rule 14-5, on which the USGA ultimately relied, explicitly provides that a player must not “make a stroke at his ball while it is moving.”  (This Rule is subject to three exceptions that do not apply here).  Rule 14-5 does not provide for any state of mind.  Still, the definition of “stroke” in the Rules requires “the intention of striking at and moving the ball.”  Therefore, one cannot make a “stroke” without the intent to move the ball.  The penalty pursuant to 14-5 is two strokes.

Curiously, though, Rule 14-5 is followed by a parenthetical: “(Ball purposely deflected or stopped by player, partner, or caddie — see Rule 1-2).

Turning to Rule 1-2, then, we find a similar rule.  This rule, however, and consistent with the parenthetical, specifically includes a state of mind provision: “A player must not (i) take action with the intent to influence the movement of a ball in play. . .” (emphasis added).  So Rule 1-2(i) is at once narrower and broader than 14-5 — it requires a specific intent to influence the ball’s movement (and therefore inadvertence is not a violation), yet it applies to acts other than the making of a stroke (for example, it would bar kicking a ball, or batting it away with one’s hand).  Its terms suggest that it also applies to any ball, not just the player’s own ball (so, for example, intentionally striking another competitor’s ball while it is moving would violate 1-2 but not 14-5).

But 1-2 also states that an action that is expressly covered by another rule is subject to that rule and not to 1-2.  Moreover, if we look at Rule 19-1, we see that if a ball in motion is deliberately deflected or stopped by a fellow competitor, then Rule 1-2 applies, and not Rule 19-1.

Synthesizing these rules, then, it appears as though Rule 1-2(i) would apply to: (a) intentional acts by the player with respect to his own ball, where those acts do not constitute a “stroke,” as well as (b) intentional acts by a player with respect to the ball of another, not his own ball (even though the text of the Rule contains no such limitation).  Of course, if that is so, and Rule 19-1 makes it clear that affecting the ball of a fellow competitor is what triggers 1-2, what are we to make of the parenthetical in 14-5 — which covers action against a player’s own ball — that refers back to 1-2?

One could argue that 1-2 is meant for intentional acts, whereas 14-5 is meant for inadvertent ones, but the definition of “stroke” makes this a complicated argument — one cannot make a stroke without intending to move the ball.  Mickelson admitted that he struck the ball with the intent to influence its movement, i.e., he intended to move it back toward the hole.  His admission, then, would be sufficient to conclusively establish his state of mind, either as to his intent for purposes of 1-2 or for purposes of making a “stroke” under 14-5.

The USGA tried to explain its decision.  John Bodenhamer, senior managing director of championships and governance, said 1-2 did not apply because Mickelson “didn’t purposely deflect or stop the ball.”  Rather, Bodenhamer said, “he made a stroke at a moving ball,” which is prohibited by Rule 14-5.  This struck me as partly correct though incomplete, as did USGA CEO Mike Davis’s more detailed explanation last night (see story GC here).

Mickelson did — by his own admission — act intentionally with respect to his ball, and it is hard to say that what he did was not a deflection or stoppage of the ball.  What is significant in my view is that when he did so, he made a “stroke,” thus taking it out of the coverage of 1-2 and requiring application of 14-5.  But even a stroke requires intent (see above).  Bodenhamer and Davis, then, would have been more accurate had they explained it this way: Mickelson did intentionally influence the movement of a ball in play; but it was his own ball, and in doing so, he made a stroke.  Therefore, the applicable rule is 14-5 and not 1-2.

The explanatory problem, then, is not with either rule in isolation, but, rather, with how these two rules work in conjunction with one another when a player’s action seems as if it could fit both.  That, it seemed to me, is where the confusion exists.

But why does it matter, one might wonder, if the penalty is the same under 1-2 and 14-5?  It matters because 1-2 provides an additional penalty for a “serious breach” — disqualification.  The big question with respect to L’affaire Mickelson, then, was whether he should have been DQ’d.  The USGA decided that he should not be, and I think that’s correct.

First, for the reasons I have cited, 1-2 should not apply here.  And if 14-5, and not 1-2, is the appropriate rule to apply, then disqualification is not even on the table as an option.

Second, even if 1-2 applied, the Rule states that a “serious breach” is one that would give the player or another a significant advantage or place another player at a significant disadvantage.  Here, in my view, Mickelson’s act did not give him or anyone else a significant advantage, nor did it significantly disadvantage another competitor.  Mickelson had already taken five strokes.  Had he not putted the ball back toward the hole while it was moving, he likely would have finished the hole with a seven or an eight.  Even though scores were high during the Third Round, Mickelson by this point was likely out of contention, and his debacle at 13 only made his situation worse.

Now, did Mickelson intend to gain an advantage by doing what he did?  Quite clearly, and by his own admission, yes.  That, he explained, was the whole point — to save strokes, even with the knowledge that a penalty would apply.  In light of the circumstances, though, I do not see how that minor stroke gain would have given him an advantage that is “significant,” nor is there is credible argument that he created a “significant” disadvantage for anyone else (even with his penalty, he has the second highest score in the field).

Consequently, a DQ would have been disproportionate to his offense, even setting aside the question of whether 1-2 is the right rule to apply.

Still, perhaps it is important to consider the raw fact that Mickelson intentionally violated a rule for the purpose of gaining some advantage to himself.  It is often said in golf that the rules are there to help, not to hurt, the player. Clearly, there are rules that give a player options, such as where he may choose between playing a ball as it lies or taking a penalty, which in some cases may benefit the player as compared to playing the ball as he finds it.  Is Mickelson’s act meaningfully different?  That is, when does intentional violation of a prohibition on conduct — solely for the purpose of gaining a scoring advantage — require more severe punishment?

The rules of sport do not often require intent in order to justify imposition of a penalty.  But where they do, they tend to treat intentional rule violations with special severity (think, for example, of an intentional foul in basketball or intentional grounding by a quarterback in football).  In my view, Rule 1-2 is an effort by golf to supply the option of especially harsh treatment to an intentional act.  But it limits the range of intentional acts that it punishes.

Perhaps L’affaire Mickelson will trigger some rethinking at the USGA about how to treat intentional rule violations that are designed to give the player a scoring advantage.   Or, perhaps Mickelson’s act, though intentional, was one unlikely to be repeated, and one easily — and justly — governed by the existing rules, which often allow a player to save strokes even when he takes a penalty.

Count this among the many issues likely on the mind of the USGA after this year’s event at Shinnecock.


Fourth Amendment basics after Collins v. Virginia

This week the Supreme Court decided Collins v. Virginia.  There (as I explained in more detail here, before the Court granted cert), Collins was prosecuted for receiving a stolen motorcycle.  After multiple high-speed chases in which police were eluded by a modified motorcycle, and after learning that Collins possessed the offending (and stolen) motorcycle, an officer went to a house being rented by Collins’s girlfriend and saw a motorcycle that appeared to match the one for which police were searching.  It was covered in a tarp.  The officer entered the driveway, lifted the tarp, and ran the license plate and VIN, confirming that it was stolen.  Collins argued that the search of the motorcycle could not be justified by the automobile exception to the Fourth Amendment warrant requirement, and the Court this week agreed.

Justice Sotomayor’s opinion for the Court held that motorcycle was within the curtilage of the home and that the automobile exception did not extend to the curtilage.  That is, an officer may not enter the curtilage for the purpose of performing the search of a vehicle pursuant to the automobile exception.  Indeed, the Court makes much of the concept of curtilage in this case.  But the Court’s statement of the underlying law is incomplete, which, I worry, affects the soundness of the Court’s holding.

Justice Sotomayor states that, “[w]hen an officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.  Such conduct thus is presumptively unreasonable absent a warrant.”  That is true, but incomplete.  Such conduct is presumptively unreasonable absent a warrant or some exception to the warrant requirement (like, for example, the automobile exception).  If the officer’s conduct fits an exception to the warrant requirement, then, even a warrantless search in the home or its curtilage is usually permissible under the Fourth Amendment.  Indeed, the exception is what makes the search or seizure constitutionally reasonable, even if warrantless, i.e., the exception overcomes the presumption.

The Court’s discussion of curtilage would be dispositive if this was a case about whether a search had occurred.  The fact that the officer physically entered the curtilage shows that the officer conducted a search.  But as the Court concedes (see fn. 2), no one — not even Virginia — disputes this.  Having established a search, then, the ultimate constitutional question is whether the search was reasonable.

That question is not ordinarily answered by mere reference to the location of the search.  If it was, then any search or seizure conducted within the home or its curtilage would be, by definition, unreasonable.  This point about conflating a search with its reasonableness is one notable aspect of Justice Alito’s sensible dissent.  As Alito says, the decision here “is based on a misunderstanding of Fourth Amendment basics.”  Determining whether the officer invaded the curtilage, he says, “determines only whether a search is governed by the Fourth Amendment.  The concept plays no other role in Fourth Amendment analysis.”

For example, assume that a police officer with probable cause wants to arrest X while X is standing in the driveway of his home.  Or that an officer wants to conduct a search of X incident to arrest in X’s curtilage.  Or that an officer with reasonable suspicion wants to enter X’s curtilage to conduct a Terry stop of X.  Or suppose an officer enters X’s curtilage for the purpose of questioning X about a recent crime that occurred in the neighborhood, and while there, obtains X’s clear and voluntary consent to search X’s car or garage or bedroom.  Surely the Fourth Amendment cases would permit these actions, even without a warrant, and even within the curtilage of the home.  But the Court now appears to hold that the automobile exception is different.

Moreover, the Collins Court’s reliance on key cases is also incomplete.  For example, the Court correctly cites Payton v. New York for the proposition that an arrest warrant for an in-home arrest helps to protect the sanctity of the home.  The Court also correctly cites the rule that warrantless arrests in public are valid, see United States v. Watson, but neglects to mention that warrantless arrests outside of the home but within the curtilage can also be constitutionally reasonable.  See, e.g., United States v. Santana.

The Court also relies heavily on Florida v. Jardines.  But Jardines was not a reasonableness case; it was merely a search case.  And the Court did not hold that the dog sniff there was unreasonable.  It merely held that the dog sniff was a search.  Nor does the Court in Collins spend much time on the notion of implied licenses. Yet Jardines does not speak of intrusions simpliciter.  Rather, Jardines speaks of “unlicensed” physical intrusions onto the curtilage, those that are neither explicitly nor implicitly permitted by the property owner.  Perhaps what the Collins Court is really saying is that the implied license given to the police to enter one’s curtilage does not extend to allowing police to inspect a vehicle in the driveway for evidence of criminality.  That is a sensible conclusion, and one likely dictated by Jardines.  But that merely tells us that the police have exceeded the scope of their license and thus conducted a search.  Again, no one here disputes that a search occurred.

Of course, this does not mean that the automobile exception should have justified the officer’s search in Collins.  It simply means that the Court could have better explained its reasoning with respect to other factors that limit the scope of the exception and that made this search unreasonable, ones unrelated to curtilage.

Indeed, if the reasonableness determination was based on the location of the search or seizure — making the search or seizure unreasonable because it was performed within the the home or its curtilage — then none of the warrant exceptions (like those in the hypos above) would apply in the home or curtilage.  That would include things like exigency, consent, plain view, etc., which we know from earlier cases have been permitted within the home or curtilage (Alito, for example, cites Brigham City v. Stuart).

But that cannot possibly be what the Court held in Collins.  In its conclusion, after all, the Court specifically says that perhaps there was another basis for concluding that the warrantless search was permissible, such as on the basis of an exigent circumstance.  See slip op. at 14.  So we know from the opinion that the Court did not mean to abolish warrant exceptions generally within the curtilage.

Perhaps, then, the best way to understand the Collins opinion is to say that this particular exception does not apply in the curtilage, notwithstanding others that may apply.  In other words, the Court is deliberately linking the unreasonableness of the motorcycle search to its location in the curtilage, even though such a linkage does not ordinarily attend Fourth Amendment reasonableness analysis.  Otherwise (or, perhaps, “nevertheless”), I fear that the Court’s over-emphasis on curtilage to justify its rule will create some mischief in future cases in which police want to employ an exception to the warrant requirement when they are within the curtilage of a home.  If the automobile exception does not apply within the curtilage, are there other warrant exceptions that also should not apply there?  I suspect members of the defense bar might now press that question.

In any event, as I said last year, add this to the long list of auto exception cases that start with “C.”

Federal jurisdiction and criminal justice in the Sooner State

The Supreme Court granted certiorari this week in Royal v. Murphy, a case at the intersection of federal jurisdiction, American Indian Law, and the death penalty.  It is also one that could affect the criminal justice system of — and a lot of people in — one state. It boils down to the following question: did Congress ever disestablish the boundaries of the Muscogee (Creek) Nation Reservation in eastern Oklahoma?

Patrick Dwayne Murphy was convicted of capital murder and sentenced to death in Oklahoma state court for killing George Jacobs on August 28, 1999.  As set forth in the opinion of the Tenth Circuit Court of Appeals, Jacobs was riding in a car with Mark Sumka in eastern Oklahoma after a day of drinking.  Murphy was driving with two other men in a car on the same road.  Murphy ran Sumka off of the road and confronted him, while Murphy’s companions began beating Jacobs; Murphy then joined the attack.  As it turns out, the court noted, Jacobs had a prior relationship with Patsy Jacobs, with whom Murphy lived.  And Murphy had stated to Patsy that he was “going to get” George.

As the appeals court explained, the evidence showed that George Jacobs was found barely alive in a rural roadside ditch with a bloody face and slashes across his chest and stomach.   His genitals had been severed and his throat had been slit.  He soon bled to death.  According to the State and the state court’s summary of the evidence (see cert petition with appendix here), Murphy and his accomplices even boasted about severing Jacobs’s genitals and placing them in his mouth, and that they “had tried to stomp on [Jacobs’s] head like a pancake.”

After the attack, the evidence summary showed, Murphy instructed everyone involved to remove their clothes so that he could burn them.  Murphy and his cohorts then went to the home of one of his accomplices, where George Jacobs’s son — George Jr. — was staying.  Apparently, they planned to kill the son, too.  But the accomplice’s mother intervened and stopped them.  Murphy later confessed his actions to Patsy, the evidence showed.  In addition, Sumka saw Murphy throw his folding knife into the woods, and investigators later recovered the knife.

Murphy is a member of the Creek Nation, as was George Jacobs.

Federal criminal law (the Major Crimes Act) provides that only the United States has jurisdiction over certain crimes committed by an Indian in Indian country.  18 U.S.C. 1153.  So, as here, a murder committed by an Indian in Indian country can only be prosecuted in federal court, not state court.  On post-conviction review, the Tenth Circuit held that, applying Supreme Court precedent in Solem v. Bartlett, Congress had never disestablished the Creek Reservation.  Consequently, the court held, this crime occurred in Indian country, over which Oklahoma lacks jurisdiction.

The explanation of Native American history in Oklahoma is extensive. For pertinent (and very interesting) details, see the Tenth Circuit’s opinion and the State’s cert petition.  The bottom line, though, is this: both Murphy and Oklahoma agree that this offense was committed on land that would be part of the Creek Reservation, if Congress has not disestablished the Reservation as such.  The Supreme Court must now determine whether Congress ever did so.

More broadly, Oklahoma argues that the resolution of this issue matters a lot to the people there. The land at issue comprises over three million acres in Oklahoma (including most of Tulsa, a city of over 400,000); 4,600 square miles; and a population of over 750,000.  Oklahoma also expresses concern that the lower court’s decision extends to the boundaries of the Five Tribes (the Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles), which, if true, would massively extend Indian country within the State (43% of the State’s land mass).

If Oklahoma cannot prosecute certain categories of crimes committed in this region of the State, the argument runs, this could have serious consequences for the State’s ability to exercise its criminal jurisdiction and could dramatically increase the number of federal criminal cases that the United States would have to manage.  Oklahoma also notes the potential effects in other areas of law, such as taxation.  Murphy downplayed these effects in his brief in opposition, but will no doubt need to address these concerns on merits review.

More immediately, though, the resolution of this issue will likely determine Murphy’s fate.  If the Court finds that the Creek Reservation was clearly disestablished, then Murphy’s conviction and death sentence will stand, unless some other legal impediment arises.  But if the Court determines that the Reservation was clearly not disestablished, and holds in Murphy’s favor, then the Justice Department must decide whether to prosecute the case (this would not, of course, raise Double Jeopardy concerns because of the separate sovereign doctrine).

Yet even that is not the end of the matter.  Even if the DOJ prosecutes Murphy or another person similarly situated, the Federal Death Penalty Act contains a special provision for Indian country cases: “no person subject to the jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country  . . . and which has occurred within the boundaries of Indian country,” unless the governing body of the tribe has decided otherwise.  18 U.S.C. 3598.  If effective as to Murphy, this would prevent the Justice Department from even seeking the death penalty against him.  And it would have the same effect on any other similarly situated person who commits a murder within this territory.  The question would then be whether federal jurisdiction could be established on some other basis.

A final complication is this: the case is on post-conviction, not direct, review.  And the state court opinion rejected Murphy’s claim that this was an Indian country case.  One of the contested issues in the lower courts was whether the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs the case.  See 28 U.S.C. 2254.  If so, then the federal courts must give deference to the state court opinion, unless the state court’s decision was “contrary to, or an unreasonable application of, clearly established Federal law,” as determined by the Supreme Court.

This requires two distinct considerations in Royal: first, whether claims regarding Indian country jurisdiction are reviewed under AEDPA deference (about which there appears to be legitimate dispute); and second, even if AEDPA deferential review applies, whether Supreme Court precedent clearly shows that the state court’s decision — affirming state jurisdiction, based on disestablishment — was wrong (this was the basis of the Tenth Circuit’s decision).

This is a complicated and fascinating case.  Watch for it next Term.

Impeachment and presidential responsibility

My latest article, “Conviction, Nullification, and the Limits of Impeachment as Politics,” has now been published in the Case Western Reserve Law Review.  In it, I argue that although impeachment is often denominated as “political,” that description both overstates and misstates the nature of impeachment, which represents a sober constitutional moment that must rise above ordinary politics.  That is especially true when an impeachment reaches the Senate, which is transformed from a political body into a quasi-judicial body adjudicating guilt.

Although not strictly “criminal” in the conventional sense, and although an impeachable offense arguably need not be a defined part of the existing criminal law, much impeachment law and procedure is nonetheless informed by the law of crimes.  Note, in particular, that the Constitution requires that the Senate “convict” an impeached official, a term that the Constitution normally employs only in the context of criminal adjudications.  In light of this understanding, when the United States Senate sits as a court of impeachment, I argue, it is transformed into a body where the incidents of partisanship and political coalition-building that characterize ordinary legislative business must ultimately be subordinated to objective judgments about higher-order interests.  Those interests include fairness, the rule of law, the separation of powers, and — when the president is impeached — presidential responsibility.

Hamilton spoke of presidential responsibility in the impeachment context.  Arguing for energy in the executive in Federalist No. 70, Hamilton urged unity.  Unity is better for, among other things, holding presidents responsible (because plural executives will try to shift blame from one to the other).  Unity therefore allows the people the chance to discover “with facility and clearness the misdeeds of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”  Hamilton then returns to responsibility in Federalist No. 77, where he reiterates impeachment as a safeguard for abuses of executive power.  Indeed, in No. 77, Hamilton is defending the Senate’s role as a check on presidential appointment power.  He is demonstrating that this check, along with impeachment, reflects the safety of a system in which the legislature has control over the executive when he abuses his office.

Impeachment has, of course, been much in the news of late, and a subject of multiple posts here.  Last week, for example, reporting concerned statements by former Senate Democratic Leader Harry Reid, who cautioned Democrats against aggressively pursuing impeachment of President Trump.  “Stop it,” he said of impeachment talk, noting the political risks to Democrats.  But Reid also went on to say that vital institutions — the legislative branch and judiciary — have been “decimated” and that constitutional checks and balances have been “sliding out the door” since Trump’s election.

This is worthy of reflection.  If — if — the President has deliberately violated the Constitution, or done serious damage to the separation of powers, and if those offenses are sufficiently serious, why not talk about the possibility of impeachment?

If you are among those who have demanded that congressional Republicans in the Trump Era set aside political calculations and place national interests above party interests — even if doing so presents political risks — then you must acknowledge that this wise advice should apply to Democrats, as well.  If the interests of preserving constitutional government and the rule of law demand an impeachment inquiry (and presidential accountability), why ignore that demand merely because impeachment brings political risks?

Of course, whether a president has committed impeachable offenses is a separate, and complicated, matter.  People of good faith can reasonably debate whether this President, or others, committed impeachable offenses.  Indeed, that debate may well be premature with respect to the current President (and I remain skeptical that pre-presidential private acts can be impeachable, even if they are criminal).  But even setting aside whether sufficient evidence exists to convict a president of a crime, if a president endeavored to thwart a criminal investigation or prosecution, to undermine the legitimacy of and public confidence in federal law enforcement officials or of the criminal law, or to exert undue influence upon an investigation or prosecution, this would raise serious questions about whether the president had abused his office and violated the sacred commands of Article II.  That part of the Constitution requires him to “take care that the laws be faithfully executed,” as well as to faithfully execute his office and to preserve, protect, and defend the Constitution.  Those questions rise to the level of gravely serious when the president engages in such actions for the purpose of protecting himself or his associates from being implicated in wrongdoing, or of endeavoring to assure that the laws are not enforced against him or his allies.

Congress must therefore ask, if those conditions ever existed, even short of prosecutable criminality, would they be worthy of an impeachment inquiry?  If so, would it matter that there was political risk, or would fidelity to constitutional government be more important, despite the risks?

Senator Reid is correct that impeachments are “unpleasant.”  Moreover, the super-majority requirement for conviction in the Senate makes it difficult to imagine any president being convicted when the Senate is closely divided along party lines.  Surely the Senate would be rightly concerned about taking up an impeachment where acquittal was a foregone conclusion.  Those are not inconsiderable factors.  And there is no question that Congress is a political beast.  But just as raw politics or partisanship should not be employed to instigate an impeachment or drive a conviction, neither should raw politics or partisanship be employed to scuttle a legitimate impeachment inquiry or sensible senatorial judgment about guilt.

As I urge in this paper, there must be limits to the electoral calculations and partisan machinations that attend impeachments, particularly those that form of a part of ordinary Senate business, once impeachment has arrived at the chamber.  Otherwise, the constitutional mechanisms for presidential responsibility become substantially weakened, and Congress takes yet another step toward irrelevance.

Attorney General’s memo on pursuing drug-related capital crimes

This is a follow-up to my last post, from March 19.  Yesterday, March 20, the Attorney General circulated this memorandum to the United States Attorneys, “strongly encourag[ing]” federal prosecutors to “use” the existing capital offense statutes that involve drug trafficking predicates.  He specifically identifies VICAR, the firearms statutes, the CCE law, and the drug kingpin provisions of the Federal Death Penalty Act (did he catch my last post, I wonder?).

While I fully support the sentiment expressed in the AG’s memo, I’m wondering what its purpose is.  After all, the existing death penalty protocol already requires that the United States Attorneys submit all death-eligible cases to Main Justice for review.  Pursuant to the existing death penalty protocol in the United States Attorneys Manual, federal prosecutors in the districts cannot unilaterally decide whether to seek the death penalty; they can only make recommendations, and the final decision belongs solely to the AG.  This is important, by the way.  As I understand the memo, it should not be interpreted to mean that the AG has now instructed federal prosecutors to unilaterally seek death sentences.  Under the protocol, they have no such power until he says so after Main Justice protocol review.  Rather, unless I am mistaken about the memo’s meaning, I understand the memo as instructing federal prosecutors to charge these underlying capital offenses (i.e., to “use” them) when the facts support such charges, thus ensuring Main Justice review and an AG decision, as well as a conforming indictment.  I do not see this as unilaterally changing the protocol (indeed, it would be strange for the AG to simply give up centralized Department review in these cases).  Consequently, when the AG refers to the “pursuit” of the death penalty in these cases, he is the one — the only one — who decides whether the death penalty is “pursued.”  It makes little sense to place that burden on the districts, who already have an obligation to submit death-eligible cases for review.

With that in mind, my sense is that federal prosecutors are already “using” these statutes — in the sense that they are seeking indictments and submitting cases for review pursuant to existing statutory law (with the possible exception of using section 3591(b), which applies only to a very small subset of potential defendants, as compared to, say, section 924, which is far more broadly applicable).

Moreover, assuming the memo means to retain the existing protocol, is the AG hinting that more USAOs need to submit “seek” recommendations?  Or is he hinting that he will sign off on the death penalty in cases implicating these statutes?  I reiterate, as I have before: the death penalty may be the right decision in a given case, but it is dangerous to signal in advance that the death penalty will be sought, prior to full and fair review of each individual case.

So I suppose one possible consequence of Monday’s presidential announcement, and of the AG’s memo, is that more and more United States Attorneys will submit “seek” recommendations to Main Justice.  And perhaps that is wise, depending upon the cases.  But each case will still have to proceed through the Capital Case Section and the AG’s Review Committee, as well as ODAG and OAG.  And defendants will still have the opportunity to argue against seeking death in their cases.  So it is possible that this new push will practically result in more capital prosecutions in cases involving drug-related killings.  But I do not see how it will change much of what federal prosecutors, and the death penalty experts at Main Justice, are already doing, and have been for many years.

Perhaps, then, the purpose of the memo was not to change what is already happening on the ground in the world of federal prosecution.  Perhaps the memo was simply meant to send the message that this Justice Department takes seriously the social, cultural, familial, and economic damage being done by those who seek to profit off of the misery, tragedy, and ultimate death of those affected by the current drug crisis.  More death sentences will not solve the crisis.  But a death sentence might serve the ends of a justice in a given case.

Let’s cook: Drug Trafficking and the Federal Death Penalty

Today, in remarks in New Hampshire, and via the White House website, the President announced an opioid prevention and enforcement plan and repeated his previous suggestions about imposing the death penalty for drug trafficking.  That issue has garnered significant attention, though it is not clear whether he will propose any new death penalty to federal criminal law.

The President often speaks in grandiose and vague terms, so it is difficult to know what he means by a death penalty “for drug traffickers.”  His language on this issue seems to be the very species of flumadiddle that nearly always characterizes his public speech on matters of complex policy.

Quite possibly, what he has meant in other remarks is a death penalty option in cases where a dealer distributes to a person who then subsequently dies from the drug received as part of the transaction.  The President did not elaborate on this today, though the White House announcement of the plan says that the Justice Department would seek the death penalty “where appropriate under current law.”  But the President also said today that DOJ is “working very hard” on changing the law.  Nothing more specific, naturally.

Several issues come to mind.

First, the idea of a death penalty connected to drug trafficking is not at all outrageous or even unusual.  Several provisions of federal criminal law already provide for this (the firearms statutes, the CCE/drug kingpin law, the drive-by shooting law, and even the racketeering laws, like VICAR).  Moreover, Congress in 1994 beefed up the capital punishment provisions for CCE/kingpin-related crimes in the Federal Death Penalty Act (FDPA).  See 18 U.S.C. 3591(b).  Indeed, a drug kingpin — Juan Raul Garza — is one of only three people executed by the federal government in the modern death penalty era (he was executed a little over a week after the Government executed Timothy McVeigh).

I understand the President to be demanding stronger enforcement of those laws.  But to suggest, as he did today, that the country maybe is “not ready” for a capital drug trafficking law suggests either that he does not know that current law already covers this ground, or that he has an unusual new capital drug trafficking law somewhere up his sleeve (is that what he meant when he said that DOJ is working to change the law?).

Second, if a new capital drug trafficking law was adopted, what would it look like?  The idea that the act of engaging in a drug transaction in which the recipient dies would be punishable by death — particularly where the victim’s death is reasonably foreseeable — is not as outrageous as it may seem.

The idea could be based on a fairly standard theory of felony murder — death resulting from the commission or attempted commission of the underlying drug trafficking felony.  And it would be consistent with the theory of non-capital death-resulting penalties used not only in the some of the federal statutes mentioned above, but also those contained in the core drug offense penalty statutes.  See, e.g., 21 U.S.C. 841(b)(1); 21 U.S.C. 960.  Those statutes could be amended to include death as a penalty for the death-resulting conduct.

This general idea could, however, raise significant questions of causation and culpability, depending upon how the law is drafted.  Who is the cause of the victim’s death: the street-level dealer?  The distributor?  The manufacturer?  The victim?  When does the chain of causation between the underlying felony and the death end? (but see this earlier post on one of the federal statutes punishing death-resulting drug activity).  Would it matter that the victim took the drugs voluntarily?  That might matter to FDPA enforcement, because one of the mitigating factors listed in section 3592(b) is that “the victim consented to the criminal conduct that resulted in the victim’s death.”  A new  statute could also raise questions about Eighth Amendment proportionality under the rule of Enmund v. Florida, if the dealer/trafficker’s culpability is too attenuated from the death (though I would argue that Tison v. Arizona would likely provide an important counterweight to any Enmund claim, where the dealer/trafficker could be said to be a major participant with reckless disregard for human life, which may be especially true when trafficking in certain opioids).

So there are some open questions raised by the idea of a new capital drug trafficking statute, and perhaps that has made the White House hesitant to propose one.

Finally, even assuming that the President’s interest in seeking more death penalties in drug cases is desirable, and that he is simply asking for stronger enforcement of current law without any new additions to the prosecutorial menu, publicly pressuring the Justice Department to seek the death penalty is a dangerous game to play.

A President should be able to make his law enforcement priorities known, including his support for the death penalty.  Every President shifts DOJ resources to those areas he wishes to prioritize (gangs, guns, corporate crime, etc.).  Still, as I have previously written in the context of the President’s public statements about the Saipov case, whenever the President appears to be putting political pressure on the Justice Department to seek the death penalty, that pressure can create the impression that the DOJ’s death penalty review process is a sham.  It undermines public confidence in what should be a serious and apolitical review based on the facts and circumstances of each case.  That confidence, and the sober nature of DOJ death penalty protocol enforcement, is critical to the continued legitimacy of the federal death penalty.

To be fair, today’s remarks do not raise quite the same concerns — advocating a death penalty generally for a category of federal offenders is not the same as advocating it in a specific case without having all of the available facts and evidence.  And the White House’s statement that the DOJ “will” seek the death penalty “where appropriate under current law” may suggest that the review process will remain objective.  But, it also raises a concern: does the White House mean to say that the DOJ will seek the death penalty where the statutory scheme provides for it?  Or does the White House mean that the DOJ will seek the death penalty only where current law allows it and the DOJ concludes from its internal review that death is an appropriate punishment based on the specific facts and circumstances of the case?  Big difference.

The President’s proclivity for public bombast when wanting to appear “tough” can have negative consequences for the policies he claims to support, transforming tough talk into presidential weakness.  His counter-opioid plan has some admirable components.  They deserve a serious but careful defense.