Saipov and the federal death penalty

The Government has filed a formal criminal complaint in the case of Sayfullo Saipov, who allegedly killed eight people and injured about a dozen more on Halloween by driving his truck through a bike lane in New York City.  Although this is not an indictment, and the indictment could include additional statutory violations, the complaint focuses on one of the material support for terrorism statutes (18 U.S.C. 2339B) and the motor vehicles statute (18 U.S.C. 33).  Interestingly, the complaint also alleges a violation of section 34.  That is critical, because although the material support statutes do not provide for the death penalty, section 34 explicitly does, and here the violation of section 33 resulted in the death of a person.

Based on this, and what will almost surely appear in a future indictment, there seems to be a very high probability that the Government will seek the death penalty against Saipov.  In fact, now, I would say that it is almost certain.

Yesterday, the President tweeted that Saipov “SHOULD GET THE DEATH PENALTY.”  The President then tweeted again today about Saipov’s case, “Should move fast. DEATH PENALTY!”  (Politico has analysis here).  That is a sentiment shared by many, and under ordinary circumstances, it would be an unremarkable assertion in a terrorism case involving so many killings.  The problem, however, is that the President is not supposed to be the guy at the end of the bar.  The President oversees the federal prosecutorial infrastructure and the very people who must make the decision of whether to seek the death penalty against Saipov.  Why is that a problem?  Here is why, and it’s different than the concerns others have raised.

The federal death penalty is (or, at least should be) a point of pride for the Justice Department.  It is not used often, but when it is used, it tends to be reserved for truly heinous and highly aggravated killings.  And the Saipov case, based on what is currently known, looks to fit that bill.  Moreover, the federal death penalty provides substantial process to ensure that the decision whether to seek the death penalty is fair and objective, based on a variety of relevant factors.  Federal capital defendants receive learned counsel, and per the DOJ’s death penalty protocol, they have the opportunity to make a presentation (through counsel) to DOJ officials who review the United States Attorney’s submission of the case.  The process is not rushed, nor is it arbitrary.  Some cases, though death-eligible, may not be sufficiently aggravated to warrant a decision to seek; and even in a highly aggravated case, the Attorney General may decide not to seek because of substantial mitigating evidence, including mental state evidence.  The Department goes to great lengths to ensure that the threshold seek/no seek decision is deliberate, informed, and fair.

By stating his insistence upon a death penalty for Saipov, however, the President may be sending a signal to General Sessions that Sessions must authorize a capital prosecution, regardless of the mitigating evidence (if any).  Now, it is likely that Sessions would be inclined to seek in this case anyway, and from all public accounts of the alleged offense, it would seem to fit the mold of a federal death penalty case — highly aggravated, implicating national government interests, with minimal persuasive mitigation.  But the whole point of the protocol review process is to vet the case and determine whether the death penalty is appropriate, in light of the facts and circumstances of the individual case.

In other words, my fear is that the President has given Sessions little room on the “no seek” side of the decision-making process.  This is particularly true for Sessions, who has been publicly humiliated by the President in recent months and who functions in a world where public disagreement with — indeed, failure to worship — the President is treated as a great sin.  One might reasonably ask whether Sessions feels that he is in any position to take a different side from the President on anything.

My even greater fear is that Saipov’s lawyers will challenge the fairness and legitimacy of the review process by claiming that the fix was in and that once the President tweeted, Saipov never stood a real chance of avoiding the death penalty because the Attorney General’s hands were politically tied.  While capital defendants ordinarily do not challenge the process by which the seek decision was made, I am concerned that the President may be inviting new litigation about that process.  That is unfortunate, and unfair to the career prosecutors, as well as political appointees at Justice, acting in good faith to apply the protocol and make sound decisions in very ugly, and often complex, cases.  It is especially unfortunate in a case where the President’s sentiment was wholly unnecessary — the Attorney General may already have been inclined to favor the death penalty without prompting by the President.

I don’t want to overstate the concern.  Perhaps the President’s tweets will not matter in the Saipov case, and perhaps the legitimacy of the decision-making process will not be challenged.  After all, as I have said, it is not as if this would be a weak case for the death penalty in the absence of the President’s tweets.  Still, the President’s tweets — however satisfying to his political base — could be perceived as influencing the Justice Department’s ability give the case an objective review, and have the effect of compromising the integrity of a process that is designed to be serious, sober, thorough, and independent.  In death penalty decision-making, those are virtues more important than speed.

Given the pressures facing the death penalty in America, it is critical that the federal system be perceived as fair and just, rather than merely efficient or fast.  For those of us trying to preserve the death penalty, and its image in American law and politics, the President is making things much harder.

 

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“Vacationland for lawyers in love”

Last night I watched the news from Washington (the capital),

The Russians escaped while we weren’t watching them (like Russians will).

Now we’ve got all this room,

We’ve even got the moon.

And I hear the USSR will be open soon

As Vacationland for

Lawyers in love.

— Jackson Browne, “Lawyers in Love (from Lawyers in Love, Asylum Records, 1983).

Perhaps today’s news doesn’t precisely parallel all of the political and cultural phenomena that fueled Jackson Browne’s early 80s Cold War commentary, but, if you’re a lawyer (and you remember the Cold War), today was a fascinating day (“Among the human beings/ in their designer jeans/ am I the only one who hears the screams/ and the strangled cries of lawyers in love?”).

The indictments of Paul Manafort and Richard Gates were unsealed, alleging conspiracy, money laundering, and violations of the Foreign Agents Registration Act, among others.  The indictment is here.  Just after the President tweeted that the indictment shows there was “NO COLLUSION,” the news broke that Trump campaign national security adviser George Papadopolous pleaded guilty to making false statements to the FBI when interviewed in connection with the Russian meddling investigation.  That guilty plea statement is here (via NYT).  It is riddled with references to Papadopolous’s email exchanges with individuals connected to the Russian government, as well as references to other officials (some high-ranking) in the Trump campaign who apparently knew about Papadopolous’s efforts — and who did absolutely nothing to put a stop to the apparent contacts with Russian connections.

Politico has this entry with reaction from notable legal figures.  What appears clear from the views of many experts is this: the Manafort indictment is not nearly as significant as the Papadopolous guilty plea.

Much of the difficulty with this entire episode is the hyper-focus on the word “collusion.”  Somehow, somewhere, this became a term that has defined the nature of the scandal.  But why?  It has been said before but is worth reiterating: collusion is not per se a crime.

“Collusion” is a legally-neutral term; it can refer to criminal cooperation or simply to cooperation covertly or by deception.  So although collusion is typically a term used to describe a state of affairs that is bad (that is, it is not morally neutral), its use in the present context does not, without more, connote violation of some specific criminal law.  For lawyers, what we ought to mean by “collusion” in this particular context is that someone in the Trump orbit, and more specifically in the campaign, formed an agreement to cooperate with, or to develop a relationship with, the Russian government or individuals connected to high-ranking Russian government officials for the purpose of assisting Trump in defeating Hillary Clinton.  That may nor may not be a crime, but it would seem to fit a proper understanding of “collusion.”

The extent to which that kind of agreement or relationship is a crime will vary based on the law applicable to the facts.  Still, when one examines the Papadopolous document — and then adds the now-infamous Trump Tower meeting in June 2016 — it is hard not to conclude that at least some in the campaign were, in fact, trying to forge such an alliance.  Again, whether that is criminal is a separate question, as is the question of whether candidate Trump himself knew anything about the activities of these lower-level actors.  But to state that there is “no evidence of collusion” is to simply turn a blind eye to the obvious, once “collusion” in this context is properly understood.

So, when you hear the President or someone in the Trump orbit say “there was no collusion,” ask whether they mean there was no criminality, or whether they mean there was no intent or effort to develop a cooperative agreement with the Russians to help Trump win and to damage Clinton.

All that said, and regardless of where one stands on the merits of the ongoing investigations, there is much to be sad about today.  I very much doubt that we would be discussing any of this, or spending enormous public time and resources on this matter, were it not for the pathological need of political campaigns to absolutely destroy their opponents in the effort to win. What we see, particularly in the Papadopolous news, is the disturbing length to which political campaigns will go in America to smear, to discredit, to ruin an opponent.  It is not new, nor is it unique to the Trump campaign.  Both parties do it.  And they spend obscene amounts of time and money on it.

True, sometimes revelations about a candidate can serve a valuable purpose, where they bear on a candidate’s competence, or ability to do the job, or reveal truly bad acts about which the public ought to be informed.  But dirt-digging ventures have routinely become a substitute for substantive debate between, and about, candidates.  The danger is that national campaigns will focus not so much on the election of those who can best govern safely and effectively under the Constitution, but simply on which candidate is able to survive total annihilation.

When these are the wages of entry into electoral politics — not just defeating your opponent, but ruining them, and spending millions and millions of dollars to do so — is it any wonder that people who are good, smart, capable, and patriotic, but imperfect, do not want to run for office?  Is it any wonder that so many good people who are currently serving no longer want to be part of the system?

Perhaps the need to annihilate our opponents proceeds directly from two additional pathologies in our contemporary politics: extreme polarization and hero worship.  I shall have more to say about that soon.  For now, fortunately, we have baseball.

 

 

New case asking the Supreme Court to abolish the death penalty

I was grateful to contribute to the Akron Law Review’s recent symposium issue on Justice Scalia’s legacy in criminal law and procedure.  My short piece, available here, analyzes Justice Scalia’s work in death penalty cases.  One of the issues I tackle has to do with the viability of judicial abolition on the post-Scalia Court.  I mention this now because a new petition has arrived at the Court in Hidalgo v. Arizona, which was featured on SCOTUSBlog this week and which offers the Court the opportunity to consider judicial abolition.   Neal Katyal is counsel of record for Hidalgo, and Katyal’s name certainly lends gravitas to the petition.

One thing about the petition irked me.  In its recitation of the facts, the petition simply says that Hidalgo “killed someone in exchange for $1,000 from a gang member.  In the course of that crime, he killed a bystander.”  Those facts are literally true, but woefully incomplete and santitized.

Yes, Hidalgo killed “someone,” but that someone had an identity: Michael Cordova, whom Hidalgo shot in the forehead.  And as the Arizona Supreme Court’s opinion states, Hidalgo took the $1,000 from the gang member “without knowing Cordova or why the gang wanted him murdered.”  In other words, it was just business for Hidalgo.  The “bystander” reference is also problematic.  The “bystander” was Jose Rojas, and his death was no accident; it was not as if Rojas was walking by and was randomly struck by a bullet that had ricocheted off of a cement wall.  Hidalgo, the facts from the lower court opinion show, deliberately shot Rojas in the head to prevent him from being available as a witness.  And after Hidalgo had shot both men in the head, according to the state supreme court, Hidalgo “shot each victim five more times to ensure he died.”

To be fair, Hidalgo attaches the Arizona Supreme Court opinion as an appendix.  So the complete set of facts is literally contained in the petition, if the reader ventures to the appendix to read the state court opinion.  Still, the petition’s effort to sanitize the murders here is frustrating to read.

Substantively, the per se challenge to the death penalty is not the only issue raised in the petition.  Hidalgo leads with the claim that Arizona’s list of statutory aggravating factors — 14 of them, see Ariz. Rev. Stat. 13-751 — fail to perform the constitutionally required narrowing function because they are so numerous and broad that a defendant would be death eligible for most any first-degree murder.  It’s an interesting framing of the narrowing problem, but I am skeptical of the claim for a variety of reasons, including some identified in the Arizona Supreme Court opinion.

The question is not, “how many aggravators appear on the state’s list?”  I would argue that the Eighth Amendment does not require a numerical cut-off point.  If it did, how would we know what that cut-off point is?  Rather, the question is whether each aggravator on the list circumscribes the broader class of first-degree murderers.  The mere fact that all of the aggravators added together will apply to a broader class of murderers than any individual aggravator does not make the scheme insufficiently narrow, because all of the aggravators on the list will not apply to each case (indeed, if there were a case in which all 14 aggravators applied to the defendant, it would be hard to argue that that defendant was not deserving of death-eligibility).

In other words, one could argue, the constitutionality of the State’s narrowing procedure should be judged on an as-applied basis: once the State enumerates eligibility factors in its capital sentencing scheme, the only thing left is to determine the validity of each factor as it applies to the defendant in a given case.  If one could make what amounts to a facial challenge to the list of statutory aggravators generally, then the remedy is . . . what?  Excising some?  And if the Constitution required the State to narrow its list even further, how would the Eighth Amendment — or a court — even know which aggravators had to be excised?  What standard would be employed to effect that remedy?

It seems to me that the only way to answer those questions is to evaluate each individual aggravator for its validity.  And yet Hidalgo does not allege that any of the aggravators that apply in his case were themselves constitutionally invalid.  Curious.  The State Supreme Court, in my view, properly disposed of this claim, relying on the authority of Tuilaepa v. California, and also properly understood the distinction between eligibility and selection.

But let’s assume for the moment that Arizona’s scheme of aggravators is constitutionally overbroad.  Even if Arizona’s legislature — voluntarily, or as a result of judicial compulsion — had to further narrow its list, Hidalgo’s crime surely would fit into one or more factors on a constitutionally permissible shorter list that distinguish his crime from a first-degree murder generally.  He killed more than one person in a single criminal episode, substantially premeditated the killing of Cordova, committed the Cordova murder for pecuniary gain, and the murders were closely connected to the activities of a criminal enterprise.  It is not clear, then, that Hidalgo would escape the death penalty even if the statute was narrowed further.  Perhaps this is why he focuses on the breadth of the statutory list generally, rather than on the particular aggravators in his case.  Even if we assumed the invalidity of Arizona’s list, it is not difficult to imagine a constitutionally permissible list of statutory aggravators that would make Hidalgo death-eligible.

Still, keep an eye on this case.

 

The Automobile Exception, driveways, and cases that start with “C”

The Automobile Exception holds that police may, without a warrant, search an automobile where the police have probable cause to believe that the automobile contains contraband, or fruits, instrumentalities, or evidence of a crime.  The Supreme Court’s leading cases on the Automobile Exception all involve parties whose name starts with a “C”: Carroll v. United States, Chambers v. Maroney, Coolidge v. New Hampshire, Cady v. Dombrowski, and California v. Carney.  Weird.

An interesting Automobile Exception case is now pending before the Court on a cert petition: weirdly, Collins v. Virginia.  It asks whether the Automobile Exception extends to searches of vehicles parked in a private driveway, where no driver or other occupant is immediately present.  (SCOTUSBlog’s page is here).

In Collins, according to the Virginia Supreme Court’s description of the facts, the defendant purchased a motorcycle that was orange and black with an extended frame, modified for drag racing.  On two occasions, a motorcycle matching this description raced past Albemarle County police and was able to evade the officers who gave chase. Police concluded it was the same motorcycle.  Upon investigation, authorities learned that the motorcycle had been sold to Collins, who was told that it was stolen.  While investigating Collins in an unrelated matter, police asked Collins about the motorcycle and he denied knowing anything about it.  His Facebook page, however, contained photos that appeared to show the motorcycle in question.  One of the investigating officers — Officer Rhodes, who had chased the motorcycle in one of the earlier speeding incidents — was convinced that the motorcycle in the photos was the same one that he had chased, but Collins again denied any connection.

After gathering evidence from an informant, the Court explained, Officer Rhodes went to the Charlottesville house that was shown in one of the photos from Collins’s Facebook page.  There the officer saw a white tarp covering what he believed was a motorcycle.  Looking at what was visible beneath the tarp, Officer Rhodes says he “recognized the distinct chrome accents and ‘stretched out’ shape of the motorcycle.”  He walked up the driveway and removed the tarp, finding what he believed to be the motorcycle that had previously eluded him.  He recorded the VIN, ran a search, and learned that it was, in fact, stolen.

Collins, who had not been home, soon arrived.  Officer Rhodes knocked on the door, Collins answered, and during questioning, Collins admitted that he paid $3500 for the motorcycle and knew it had no title.  He was arrested; during the search incident, the motorcycle’s key was recovered from Collins’s pocket. He was prosecuted for receiving stolen property and was convicted.

Collins claims that the search — entering the driveway and removing the tarp — was unconstitutional, absent a warrant, because the Automobile Exception does not extend to vehicles parked in a private residential driveway (it turns out that the home is that of Collins’s girlfriend, but Collins stays in the house several nights a week, according to the cert petition).  He claims a split among the federal circuits, though Virginia claims that Collins exaggerates the split (and says it is not a “genuine” split).

In Carney, the Supreme Court articulated two rationales that justify the Automobile Exception.  First, vehicles are readily mobile.  This ready mobility creates the risk that the automobile may flee and evidence will be lost before a warrant can be obtained.  Carney gives a fairly broad reading to the ready mobility rationale, which seemingly applies to any automobile that is operable (like Collins’s motorcycle).  The ready mobility rationale, though, has a complex history.  In Carroll and Chambers, for example, the cars had been stopped on the highway.  And in Carney, the mobile home at issue was searched while parked in a city parking lot.  But in Coolidge, the Court — in a plurality opinion only — invalidated the search of a car that was initially found in the defendant’s driveway but then towed to the police station.  The Court found it significant that there was some delay in the search and that it was initially found unoccupied on private property.

Coolidge thus lends some tepid support to Collins’s petition.  So, too, does language from Carney, which says that the doctrine applies where “a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes.” (emphasis added).

One potential argument here is that the ready mobility rationale is something of a legal fiction.  A car, or motorcycle, may be “readily” mobile with the turn of a key, but the fear of the automobile fleeing, or of evidence becoming elusive, cannot be realized unless a person is there to operate the vehicle.  Compare this to the rule from Belton v. New York, which held that a search of a vehicle’s passenger compartment as incident to arrest was automatic with the arrest, even if the arrestee was secured and the vehicle was not actually within his grabbing area (the Court modified that rule in Arizona v. Gant).

One could argue, then, that the ready mobility rationale should apply only where a person is immediately present at the vehicle — such as when stopped on a highway, or when a police meet a person at the car, even on a private driveway — or there is otherwise a reasonable probability that the vehicle could be set in motion.  In other words, Collins might argue, a vehicle is not “readily capable” of use on the highways unless someone is present to drive it.  But this would likely work some change in the current understanding of ready mobility after Carney.  It also would arguably undermine the function of the rationale: the ready mobility of a vehicle in the abstract is enough to justify searching it even if no driver is present, because if the police must wait for a warrant, someone could come along and take the vehicle away before the warrant can be obtained (for example, if Officer Rhodes had to wait for a warrant, Collins could have driven the motorcycle away and disposed of it).

The second rationale for the Automobile Exception is that people have a reduced expectation of privacy in automobiles.  Even if a vehicle is not readily mobile, the Court said in Carney, “the lesser expectation of privacy” justifies the Automobile Exception.  This would be true even if the vehicle is in a residential driveway, though not in a garage.  Perhaps this is why, as the Commonwealth notes in its response, some commentators have interpreted the Carney “regularly-used-for-residential-purposes” language as applying to garages but not to driveways.

Collins’s best argument as to this rationale would seem to be that the expectation of privacy, even if ordinarily diminished, is at least heightened when the vehicle is in a garage or other interior structure associated with the home, or where the vehicle is within the curtilage of the home (including, as Collins argues, the driveway), given the protection afforded to the curtilage in other Fourth Amendment contexts.  Still, though, the curtilage is not free from law enforcement observation (see the aeriel surveillance cases, e.g., California v. Ciraolo), nor is it free from law enforcement entry within the scope of an implied license.  See Florida v. Jardines.  The question is whether law enforcement, even with a license but without a warrant, may enter the curtilage and remove a tarp from a covered automobile for purposes of positively identifying it.

Collins’s battle is likely an uphill one, and there are sound reasons for keeping the Automobile Exception’s reach robust.  But the Court has, in recent terms, extended some Fourth Amendment protections.  And this case raises enough open questions about the Automobile Exception that the Court could supply some needed clarity by granting cert.

Or, perhaps, the Court might simply like to add another “C” case to its Automobile Exception jurisprudence.

 

Federal crimes in Charlottesville

The horrific events in Charlottesville yesterday have prompted a number of important questions associated with the political and moral necessity of condemning the evils of white supremacy and political violence: why did the President fail — once more — to specifically condemn white supremacy and explicitly disavow fascist and racist supporters? Will Republicans condemn the President’s anemic and equivocal response? Should we call this domestic terrorism, and why would that matter? Those are worthy questions.

Now that one person is in custody related to the car crash that killed a 32-year-old woman, however, it is also important to begin looking at the criminal law questions, as well as the political ones. The Justice Department — after an appropriate statement of condemnation from Attorney General Sessions — announced that it has opened a civil rights investigation. It is early, and we need to await more evidence before arriving at any conclusions about charges or guilt. Still, what might the Feds be looking for?

Most likely, investigators will focus on whether there was a conspiracy to violate civil rights of anyone, including the counter-protesters, pursuant to 18 U.S.C. 241. Investigators will also likely focus on 18 U.S.C. 245, which targets actions against those engaged in certain specific federally-protected activities; whether anyone was intentionally obstructed in the free exercise of their religion, pursuant to 18 U.S.C. 247; and whether this was a violent hate crime, pursuant to 18 U.S.C. 249. These latter three charges, in particular, would require evidence that the person had acted with some specifically proscribed animus, such as racial or religious animus. With respect to the car incident specifically, because death resulted from the actions of the driver, capital punishment is available under sections 241, 245, and 247, but not section 249, if those statutes applied.

But the Feds may not need to rely solely upon civil rights enforcement statutes here.  For example, 18 U.S.C. 33 makes it a crime for any person, acting “with intent to endanger the safety of any person on board” or “with reckless disregard for the safety of human life,” to damage, disable or destroy any motor vehicle “used, operated, or employed in interstate or foreign commerce.”  Section 33 also makes it a crime to, “with like intent,” disable or incapacitate “any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessen[] the ability of such person to perform his duties as such.”  The video and photographic evidence from the scene in Charlottesville strongly suggests that Section 33 is a potential avenue for prosecution, though this would also depend upon other factors, such as evidence to prove the jurisdictional element (though that should ordinarily not prove to be difficult).

Section 33 does not specifically employ capital punishment, but it need not.  Section 33 is a part of Chapter 2. This is important because Section 34 provides that the death penalty applies to anyone convicted of a crime listed in Chapter 2, where the crime has resulted in a person’s death.

Another important question that remains is whether the driver is a member of, or acted on behalf of or at the direction of or in an effort to become a member of or increase status in, some specific entity, organization or association-in-fact. If so, this could potentially implicate the racketeering laws, notably the violent crimes in aid of racketeering (VICAR) statute, 18 U.S.C. 1959.  Unlike the RICO statute (sections 1961 and 1962), VICAR provides for capital punishment.  Of course, in addition to proving the underlying conduct, the Government would need to prove that the entity met the statutory definition of a racketeering “enterprise.”

Finally, it is worth noting that any mention of capital punishment is subject to both the procedural prerequisites of 18 U.S.C. sections 3591 and 3592, as well as the DOJ’s death penalty protocol.

Virginia has proven itself more than capable of handling high-profile homicide cases.  But in recent years, we have also seen the Justice Department take the position that federal action is required when civil rights enforcement is at stake.  It will therefore be important to find out whether investigators can uncover evidence of animus, or other evidence, that would be sufficient to implicate the federal civil rights statutes in Title 18.  But even without the civil rights statutes in play, federal prosecutors still may have an avenue for federal action, depending upon what the investigation reveals.  The question would then be, as it often is, whether the Feds would be content to let Virginia handle the case alone, whether Virginia would defer to the Feds, or whether there would be dual prosecutions, in which case the Feds would have to assert a unique federal interest that would not be vindicated by the state prosecution.  If the civil rights statutes are implicated, and if prior similar cases are any guide, the chances of a federal prosecution are very high.

Hate crimes enforcement continues, but under-reporting remains a concern

Although some questioned whether Attorney General Sessions would make hate crime enforcement a priority, I speculated that — particularly in light of the nature of the federal hate crimes law, which requires proof of willfully-caused bodily injury or an attempt to cause bodily injury through the use of certain dangerous devices or weapons, see 18 U.S.C. 249 — those concerns were likely overstated and that General Sessions would continue robust hate crimes enforcement.  So far, this has proven to be the case.

General Sessions recently delivered these encouraging remarks at a national hate crime summit, in which he said “hate crimes are violent crimes.  No person should have to fear being violently attacked because of who they are, what they believe, or how they worship.”  Moreover, the Justice Department announced back in April the creation of a special hate crimes subcommittee as part of its Task Force on Crime Reduction and Public Safety.   And in recent months, the Civil Rights Division has announced several new hate crime indictments (see, e.g., here and here and here).

Still, less encouraging news came recently, regarding the under-reporting of hate crimes.  According to this new report from the Bureau of Justice Statistics, 54% of violent hate crimes were not reported.  Some media coverage here and here.  There are a variety of explanations for the under-reporting, as noted in the report.

I hope that by making hate crimes an enforcement priority, the Department can incentivize greater reporting participation and provide the public, and law enforcement partners around the country, with more accurate information about the frequency of, and risks associated with, hate crime behavior.  Any comprehensive national approach to violent crime should, as the Sessions Justice Department has thus far acknowledged, include attention to bias-motivated violence.

 

 

Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part II

In my last post, I focused on the potential civil rights issues arising from the account given by Joe Scarborough and Mika Brzezinski concerning their allegation that the President, through his staff, asked them to apologize for negative coverage and make their coverage more positive in exchange for the President using his authority to stop publication of a potentially damaging story about them in the National Enquirer.  Again, there appears to be more to this story, the President denies Joe’s account, and it is unclear as yet whose version is correct.  My previous post discussed the federal statutes that make it a crime to willfully deprive a person of his rights, 18 U.S.C. 242, and to conspire to injure, oppress, threaten, or intimidate a person in the exercise of a constitutional right, or because of his exercise of a constitutional right.  18 U.S.C. 241.  But because there has been some commentary on the potential extortion and reputational blackmail aspects of this story, I will now focus on those.

First, let’s begin with the statutes that proscribe extortion.  The Hobbs Act, 18 U.S.C. 1951, does so, but I think the Hobbs Act is problematic here.  This law makes it a crime to obstruct, delay, or affect commerce by extortion.  It further defines “extortion” in section 1951(b)(2) as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The problem is that, in this case, even assuming the truth of Joe’s account, there was likely no effort to obtain “property.”  Although intangible things can be “property,” the Supreme Court held in Sekhar v. United States that “property,” for purposes of Hobbs Act extortion, must be capable of transfer from one person to another.  It must be obtainable.  The Sekhar Court also distinguished between extortion and coercion, which, the Court said, is threatening another person to do or abstain from doing something that he or she has a legal right to do or abstain from doing.  Coercion, then, need not involve transferable, obtainable property; Hobbs Act extortion does.  And the Hobbs Act does not cover mere coercion.

The other statutes that might seem directly relevant here are those in the statutory scheme involving interstate communications, 18 U.S.C. 875.  In particular, consider subsections (b) and (d), both of which forbid threatening interstate communications made with the “intent to extort.”  They also require that the threats be to “injure the person of another” (as in (b)) or to “injure the property or reputation of the addressee” (as in (d)).  If Joe’s account is true, then if the President was threatening to greenlight a story that would cause reputational or financial jury to Joe and Mika, this would seem to fit the injury element, even though it is not physical injury as required by subsection (b) (that is, if we can say that “injury to the person” also includes reputational or financial injury; of course, this could also mean physical injury only).

Here the problem is that the mens rea element requires an “intent to extort . . . money or other thing of value.”  Even in Joe’s account, the President did not seek money.  The question, then, would be whether the President’s alleged effort to extract an apology, and thereby change the substantive content of Morning Joe’s coverage, would constitute extorting a “thing of value.”  One might argue that a political commentary show’s substantive coverage of the President is a “thing of value” because it is the show’s content that attracts viewers and advertisers, revenue and ratings.   Perhaps, it could be argued, Morning Joe’s viability would be affected if it changed the way it covered the President.  But this would seem to be a contested issue in a case under either section 875(b) or section 875(d).  And if Sekhar’s understanding of extortion in the Hobbs Act context also applies to the extortion provisions of section 875, then it would not be enough to simply show that there was merely intent to coerce.

A somewhat more viable statute in the section 875 scheme could be subsection (c), which also forbids interstate communications that threaten to injure the person of another, but does not require any intent to extort.  Thus, we can avoid the extortion/coercion problem that Sekhar acknowledged, as well as the tricky issues involving money and what a “thing of value” is.   The Supreme Court held in Elonis v. United States that section 875(c) requires that the actor send a communication with the purpose of making a threat, or with knowledge that the communication will be viewed as a threat.  Mere negligence will not suffice, but the Court did not address recklessness (Justice Alito’s separate opinion would have allowed a conviction based on recklessness — “conscious[ly] disregard[ing] the risk that the communication will be viewed as a true threat”).  Again, if a threat to injure reputation or to cause financial harm satisfies the “injury to the person of another” element, then this would seem to be a better fit than the more complicated extortion statutes.

In short, those who say this alleged incident might not fit the legal standards for extortion or reputational blackmail may well be right.  I am not sure, however, that failure to satisfy extortion or reputational blackmail is, or should be, the end of the matter.  Again, if the First Amendment protects Joe and Mika from a threat of the kind alleged, then sections 241 and 242 are potentially implicated, and section 875(c) is worth a closer look.  But even if, as is certainly possible, Joe’s allegations would be insufficient to support application of the criminal statutes I have mentioned, there remains the question of whether — if the facts are as Joe alleges them — this amounts to a serious abuse of power, one that implicates the First Amendment rights of the media and that deserves greater scrutiny by Congress, the institution charged with investigating presidential abuses.

Questioning the media, even in a combative tone, is one thing, and hardly new for presidents.  But if a president seeks to do harm to individual members of the media merely because the president dislikes the content of, and viewpoint expressed in, the media’s coverage of him, that is quite another thing entirely.  And constitutionalists should stand firm against such an authoritarian posture, whether criminal or not.