What does Trump really believe about gun rights?

As Donald Trump continues to demonstrate his predictable weakness as a presidential candidate, and as he becomes increasingly dogged by abysmal numbers in nationwide and swing state polls, he further confirmed his weaknesses and the claims of his critics yesterday with his remarks about Hillary Clinton, judicial appointments, and the power of the “Second Amendment people.”  Politico story here.  But in spite of all of the (legitimate) furor over these remarks, and others, Trump has actually received a pass from journalists and others on the substance of the Second Amendment.

People like me have tried to show that Trump is weak as a constitutionalist (which is to say, he is not one).  And yet the one provision of the Constitution that he mentions with some regularity is the Second Amendment.  Indeed, yesterday’s incident arose precisely in the context of Trump attempting to persuade the crowd that Clinton’s judicial appointments would be hostile to Second Amendment rights.  So the question necessarily arises: what are Trump’s views on the scope of those rights?  Just how strong of a defender of the Amendment is he?  What, if any, gun controls would he support?  Unfortunately, like all of his other views, it seems, his views on the Second Amendment are utterly incoherent – the stuff of sloganeering and bluster, but unaccompanied by much in the way of substance.  And yet no one seems interested in asking him precisely about his views, as a way of clarifying them, if nothing else.  If Second Amendment rights are as important as he seems to think, should we not have a better understanding of his views on this subject?

Because the Supreme Court held in Heller that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation, only the Supreme Court could reverse that decision and interpret the Second Amendment in some more limited fashion (e.g., that it only protects rights to keep and bear arms when connected to militia service).  And in order to do that, a case would need to arise in which some gun restriction was challenged as violating the Second Amendment.  Now, there are plenty of those kinds of cases out there, though the current Supreme Court seems mostly uninterested in them.  But this raises the question: how would Trump himself – much less his appointees – view the constitutionality of the gun law that would be at issue in such a case?  In order to know that – and the answer to that question could well inform his choice of judges – we would need to know more about how broadly, or narrowly, he views the Second Amendment.  He has never told us, though he claims to be “strong” on the Second Amendment.  In other words, how different really are Trump’s views on gun rights from those of Clinton, and how different would their judicial appointees be on these questions?

For example, does Trump believe that background checks are unconstitutional?  Does he believe that felons and the mentally ill should have Second Amendment rights to keep and bear arms (Heller says they do not: does he agree?)?  What about unlawful drug users?  What about service members who have been dishonorably discharged?  What about persons with misdemeanor convictions for domestic violence?  See Voisine v. United States (Thomas, J., dissenting).  Does he believe that it should be illegal to possess a firearm with an obliterated serial number, or is that unconstitutional?  Does Trump believe that the Second Amendment protects the right of a minor to possess a handgun?

His website demonstrates the incoherence of his views.  There, he claims what at first appears to be a remarkably broad understanding of the Second Amendment, and yet he says we must “enforce the laws on the books.”  What does that mean?  Are none of the “laws on the books” a violation of Second Amendment rights?  If he is willing to “enforce the laws on the books” – there are many – does that not mean that he supports substantial gun controls?  And how, if he does, would that go over with the “Second Amendment people” to whom he regularly panders?  His site also claims that gun and magazine bans are ineffective.  But are they unconstitutional?  What about the federal machine gun ban?

It turns out, these are critical questions for any presidential candidate who claims a belief in expansive Second Amendment rights.  That is because these questions each refer to federal gun laws that the president has the obligation to enforce – unless, of course, they are unconstitutional.  So Trump has a dilemma: if he believes that these laws violate the Second Amendment, surely he must refuse to enforce them and appoint judges who would strike them down, if challenged.  And yet, the president also must appoint the Attorney General, the Deputy Attorney General, the Assistant Attorney General for the Criminal Division, and the various United States Attorneys – all of whom play a role in the enforcement of these very federal gun laws.  So, will Trump’s law enforcement appointees enforce these gun laws (after all, he is the candidate of Law and Order, don’t you know), or will he only appoint people who will refuse to enforce them, on his orders, because the laws violate the Second Amendment?  Will he only appoint judges who declare their view that these federal gun control laws are unconstitutional?

Trump, and groups like the NRA, have tried to make gun rights an issue in the campaign.  (The NRA has this new ad up accusing Clinton of hypocrisy because she is surrounded by armed guards; it’s not clear how that makes her a gun rights hypocrite, as her Secret Service protection is a function of federal law.  Such an ad would make sense if, for example, Clinton acknowledged that she privately possessed a gun for self-protection but opposed allowing others to do so; that would be hypocrisy.  But that is not the NRA’s claim.).  Such a focus might have been useful in the primaries.  But in the general election, how does Trump benefit from an appeal to those with the broadest view of gun rights?  My sense is that those voters are already with Trump and highly unlikely to support Clinton.  He gains nothing electorally by clinging to a near absolutist position on gun rights.  If Trump wants to expand his support, he would be better served by appealing to those who support some gun controls.  But one of Trump’s major mistakes this summer has been assuming that the primaries and the general are indistinguishable.  Perhaps he believes that any expression of support for gun control will jeopardize his position with the most ardent defenders of gun rights in his base – even though he professes a desire to “enforce the laws on the books.”  Hence the incoherence.

Many are penning the first drafts of the Trump campaign’s obituary.  It is easy to see why.  I would be cautious, though.  For all of the pathetic whining that his campaign does about the media, it is hard to imagine a candidate who has ever benefited from media coverage the way that Trump has.  He is where he is today because of the media.  And the media, again, has given him a pass on so many problematic subjects, including his views on gun control and gun rights.  Three months is an eternity in politics, Clinton remains vulnerable, and it is not inconceivable that Trump could close the gap before the debates (more on that later).  So Trump’s electoral problems, while deeply serious now, may not yet be insoluble.  But his knowledge and preparedness problems almost certainly are.

 

Federal death penalty challenge in Vermont

There is a developing situation in Vermont concerning the federal death penalty.  C&C has a post here.  Prawfs has a post here by Professor Michael Mannheimer.  Local news is here.

Donald Fell is being retried there for the killings, with accomplice Robert Lee, of Fell’s mother Debra; her companion Charles Conway; and 53-year-old grandmother Teresca King, who worked at a store where Fell and Lee sought to obtain shotgun shells.  Fell stabbed Conway 50 times, killing him, and Lee stabbed Debra Fell to death.  As Fell and Lee fled, looking for shotgun shells, they encountered King arriving for work at Price Chopper.  They stole her car and forced her inside of it at gunpoint, then later decided to kill her to prevent her from identifying them.  They killed King by taking her to the woods in New York and kicking her and beating her with a rock until she died.  They were later apprehended in Arkansas.  Fell did not contest his guilt.  These facts are provided in the Second Circuit’s decision in United States v. Fell, 531 F.3d 197, 205-08 (2nd Cir. 2008).

Fell was convicted in federal court in connection with King’s death, and received the federal death penalty, even though Vermont, as a matter of state law, has no death penalty.  After years of appellate litigation, Fell eventually obtained relief on a claim of juror misconduct and is now is being retried.  The District Court has convened a lengthy hearing on the constitutional validity of the federal death penalty.  One issue the court is apparently considering is whether the federal government may, as a matter of constitutional law, seek the death penalty in a non-death penalty state.   I felt the issue deserved a quick comment in light of the hearing in Fell.  [Disclosure: I worked in the Justice Department’s Capital Case Unit during the earlier litigation of Fell’s case, and have also worked on this issue; nothing in this post contains non-public information, and the views here are my own considered views and not necessarily those of the DOJ.]

The leading academic proponent of the theory that the Eighth Amendment forbids the federal death penalty in a non-death penalty state is Professor Mannheimer.  His amicus brief is embedded in the above post, and he has written extensively on the subject.  His work is thoughtful and interesting.  His chief argument is that those who precipitated the drafting of the Eighth Amendment and other provisions of the Bill of Rights – the Anti-Federalists – were concerned about a federal criminal law that would displace state criminal law.  Accordingly, he contends, the Eighth Amendment’s ban on Cruel and Unusual Punishments should be understood to prevent the federal government from imposing any punishment that would be more harsh than the harshest punishment allowed by state law.   The Cruel and Unusual Punishments Clause is, then, a kind of federalism provision.

I applaud Professor Mannheimer’s use of originalism to make his case, and his concerns for federalism.  Beyond this, I do not find any appeal in this theory or this claim.  Regardless of how one feels about the federal death penalty, it is important to think about the broader consequences of this notion.  First, presumably, this argument would apply to other punishments beyond the death penalty.  So if a state’s harshest punishment was life with parole or a term of years that did not include natural life (see Alaska), but did not permit life without parole, the federal government could never impose life without parole upon a conviction for a federal crime.  Moreover, if the theory applies crime-by-crime, then if a state provided only five years in prison for an armed robbery, then a Hobbs Act robbery conviction in federal court could not result in any federal sentence longer than 5 years.  Unless I am misunderstanding this theory (and I might be), the theory would permit state law to dictate the scope of federal law.  It would give the states a veto over federal law.  That seems practically troubling, inconsistent with notions of federal Supremacy, and smacks of nullification, a long discredited notion in American constitutional law.

Moreover, this displacement theory assumes that state law and federal law are necessarily co-extensive in a given case – that when the federal government prosecutes a criminal homicide, it is necessarily seeking punishment for the same conduct that would be punishable under state law.  That is hardly ever true, and Fell is an example.  Fell is not being prosecuted for the equivalent of a state law murder.  He is being prosecuted on capital charges that arguably have a unique relationship to federal interests: carjacking and kidnapping and transportation in interstate commerce, resulting in death.  Now, one can question the constitutional basis for the creation of these and other federal criminal laws.  If the idea is that the federal government has no business prosecuting these offenses, and that they are best left to state criminal law, then the proper challenge is to the constitutionality of the underlying substantive criminal law, not the scheme of federal punishment.  That, it seems to me, is the better protection for the state’s federalism interests.

Indeed, if the framers of the Eighth Amendment, and the Anti-Federalists, were concerned about federal criminal law displacing state criminal law, then expressing that concern through a limit on punishments – rather than substantive criminal law definition powers – seems quite odd.  Placing a ceiling on federal punishments does virtually nothing to curb federal criminal law-making.  One might imagine that the better approach would have been a provision that forbid Congress from defining federal crimes in ways that displaced state criminal law.  But, of course, that would have been unnecessary, because congressional power to define criminal law was already limited by Article I.

That, of course, would be a more meaningful limit if the Supreme Court had not broadened federal commerce power to the extent that it has done.  But again, the scope of congressional power to define a crime is distinct from the question of whether the federal government can impose a particular punishment for a federal crime that Congress has properly defined.

As long as the federal government establishes a basis for federal jurisdiction in the definition of its criminal law, then by operating its own sovereign system of crime definition, it also has discretion to impose punishments unconstrained by the decisions of state legislators, whose interests may vary from those of the federal government with respect to a particular criminal act.  Of course, much federal criminal law likely has some overlap with state criminal law.  Yet it also has a unique federal hook.  Take the Tsarnaev case, for example.  Even though both the State and the Feds could have prosecuted based on the same transaction or occurrence, Massachusetts would be prosecuting for state law murder; the Feds prosecuted based on federal crimes connected to guns and terrorism.  The ongoing Roof prosecution in South Carolina is similar (even though, unlike Massachusetts, South Carolina has a death penalty).  The State law is charging Roof based on state law murder.  The Feds are prosecuting based on federal civil rights and gun crimes, resulting in death.  The federal government’s unique interest in the case gives rise to a unique federal power to punish, one that cannot be constrained by state law.

Finally, the claim has always struck me as strange, just as a matter of core principles.  The claim, at its core, is based on the idea that the people of a given state – here, Vermont – have chosen not to have a death penalty, and that the federal government should not foist its death penalty upon the unwilling people of that State.  But this argument overlooks what is obvious: clearly the people of Vermont are not categorically against capital punishment because a group of Vermonters unanimously voted to give Fell the death penalty!  And that is true in many other places (Michigan, North Dakota, New York, Massachusetts, etc.) in which the people of the jurisdiction voted to impose the federal death penalty despite the fact that it is not authorized under state law.  It cannot be said, after the Tsarnaev case, for example, that the people of Massachusetts are categorically against the death penalty when Massachusetts citizens chose to impose it when given the appropriate opportunity.  The federal government did not force or coerce the jurors to impose death upon Tsarnaev; it was their reasoned judgment after hearing the aggravating and mitigating evidence.  The same is true with Fell.  That’s the function of death-qualification for juries.

Moreover, it is significant, in my view, that the people of a state are represented in both their state legislative bodies and in the United States Congress.  What are we to make of the fact that members of Congress from non-death penalty states voted in favor of the Federal Death Penalty Act?  What conclusions are we to draw from the fact that many members of Congress from non-death penalty states have voted for inclusion of death penalty provisions in many federal criminal statutes?

This is not to say that a small group of death-qualified jurors speaks for the entire State; it is still important, as a matter of federalism, to acknowledge the limits imposed by state law.  But it does reflect what I still believe to be the reality in every American jurisdiction: that regardless of underlying state law, many of their citizens are willing to impose the death penalty where the crime is especially brutal and aggravated, mitigation is weak, and guilt is clear.

Perhaps there is more to this displacement theory of the Eighth Amendment than I am crediting.  I’m happy to do additional research on it.  But based on what I know of the idea at this point, I’m not persuaded.  Still, I look forward to the District Court’s decision on this matter, and will likely post here when it is handed down.

 

 

Nope, still not the Law and Order Candidate

I have seen a fair amount of commentary regarding the press conference held yesterday by Donald Trump.  During the event, he says “Russia, if you’re listening.  I hope you’re able to find the 30,000 emails that are missing.  I think you would probably be rewarded mightily by our press.”  He further states, “They probably have them.  I’d like to have them released.  It gives me no pause, if they have them, they have them.  If Russia or China or any other country has those emails, I mean, to be honest with you, I’d love to see them.”   Many, as noted in the news piece, have said that Trump’s words amounted to encouraging espionage.  Others, as Politico reports here, have even suggested treason (though a phrase I have also seen is “tantamount to treason.”  I’m not sure what that means).  Still others, such as here at C&C, have said that Trump could not have been encouraging the hacking of Clinton’s server because the hacking already occurred, the hackers already have the emails, and the server is no longer online.

I want to address this combination of claims by raising some issues that I think have gone unexplored.  I am not, to be clear, claiming that Trump committed a federal crime or that he intended to do so.  I just want to better understand the arguments here.

It is, of course, a federal crime for a foreign national, or anyone else, to commit espionage against the United States.  18 U.S.C. 793, 794.  It is also a federal crime for any person to aid, abet, counsel, command, procure, or induce the commission of a federal crime.  See 18 U.S.C. 2.  The aider and abettor is treated as a principal, meaning he or she is guilty of the target crime (here, espionage).

As to the claim that Trump was encouraging future hacking of Clinton’s email server, then it must be remembered, as the C&C post says, the server went offline long ago.  But I do not think that is the main concern.  Even if the hacking itself (under the Espionage Act, the “gathering” of the national defense information) already occurred, there remains the concern that such hacked information could still be “communicated” or “delivered” or “transmitted,” including to a foreign government.  18 U.S.C. 793, 794.  So it is not sufficient to absolve Trump of culpability simply on the ground that the server can no longer be hacked; its information can still be communicated or delivered or transmitted, and encouraging that would still be criminal.  Indeed, Trump specifically said that he wanted the emails to be released.  Also, traditionally, factual impossibility is not a defense to an attempt prosecution (but see below).

Now, some might say that Trump was being sarcastic and did not intend to encourage any crime.  A lot of ink has been spilled over the mens rea required for aiding and abetting under Section 2.  Federal courts have been inconsistent, though in a recent case, Rosemond v. United States, the Supreme Court attempted to clarify the standard, at least as to a 924(c) prosecution.  The Court said that a person is liable under Section 2 if he “(1) takes an affirmative act in furtherance of the offense, (2) with intent of facilitating the offense’s commission.”  This seems like a pure specific intent standard.  If Trump was speaking tongue-in-cheek or joking, then specific intent could not be established – but ask yourself, don’t you think he really does want the emails to be communicated or released publicly, if the hackers have them?

But even if the standard is one of specific intent, and even if it could be shown that Trump specifically intended to facilitate espionage by his encouragement, the question remains whether any encouragement must actually aid the principal actor.  At common law, the accomplice’s assistance had to actually aid the person committing the target offense, and in Rosemond, the Court said section 2 is derived from common law principles.  And yet, in Rosemond, the Court did not appear to impose that kind of reading upon section 2.  Rather, merely engaging in the prohibited act, with requisite mens rea, would appear to be sufficient even if it did not actually aid (so, unlike at common law, under this theory an attempt to counsel or encourage the principal would be enough, and some federal courts have recognized such a thing as attempted aiding and abetting under section 2).  Still, I am not confident that I have found sufficient authority stating unequivocally that attempting to encourage a crime is sufficient for section 2 liability if it does not actually encourage the commission of a crime.  Nonetheless, the question I am asking is whether he could be liable for encouragement, if the emails would be communicated or transmitted regardless of his statements.

As to treason, readers know that I have covered this ground several times before (including as recently as last week, when it was a Trump supporter who accused Hillary Clinton of treason).  To be treasonous, Trump had to intend to betray the United States.  But even if that could be shown, the Treason Clause of Article III requires giving “aid and comfort” to an “enemy.”  For the same reasons that Trump may not have violated the complicity provisions of Section 2, it could also be argued that he did not actually give any “aid” to an “enemy.”  Though it might not be our Government’s favorite place, I think there would be a serious question as to whether Russia is an “enemy,” as that term is used in the Treason Clause (though I’m open to the argument).  Again, let’s all just calm down the treason talk.

This, of course, is hardly the first time that Trump has flirted with criminality.  Nor should his statements come as any particular surprise.  But this episode shows three things worth noting.

First, Trump’s comments are ironic.  Trump (and other Republicans) have accused Hillary Clinton of being unfit for the presidency because she, they argue, violated the Espionage Act and posed a threat to our national security.  Trump, it seems, has now forfeited any credibility or legitimacy in criticizing Clinton’s alleged criminality, or her danger to our national security.  When you tell a foreign power that you “hope” they are able to find damaging information about your political opponent by hacking into her computer, and that you want that unlawfully obtained information to be released publicly, even if you are sarcastic (and I am skeptical of that explanation here), you have lost whatever credibility you may have had in claiming superiority on national security.

Second, and related, this episode further reveals that, even if Trump’s statements were not prosecutable under the Espionage Act and the complicity provisions of Section 2, he continues to demonstrate why he is not, and can never credibly be, the “Law and Order” candidate.  To continue a theme I began recently here, you cannot be the candidate of “Law and Order” if you encourage a foreign national or foreign government to hack into, deliver, and/or reveal sensitive information obtained unlawfully from computer systems of American citizens.  Your offense is aggravated if you express enthusiasm at the prospect of the foreign national or foreign government revealing unlawfully obtained information about a political opponent that could damage her.

Third, and perhaps as bothersome, Republicans have been disturbingly tepid on this episode.  Proponents of “law and order” and of protecting American national security – as Republicans claim to be – should have been aggressive and unequivocal in denouncing Trump’s comments, whether actually criminal or not – as many did after his comments about Judge Curiel.  One can only imagine the head-explosion in Republican circles if Clinton or any other Democratic candidate ever said such a thing.

As we saw in Cleveland, the unmitigated hatred of Hillary Clinton, and the bizarre and unprincipled embrace of Trumpism, is leading many Republicans down a lot of dangerous paths – paths from which they may never be able to emerge unscathed.

UPDATE:  As noted in this CNN piece, Trump has now said he was “being sarcastic.”  But sarcastic as to what?  As to the hacking, that’s one thing.  But yesterday, on the issue of the hackers revealing the emails, Trump seemed both serious and unequivocal (as was his tone during the press conference on this matter).  He also said, “to be honest with you” and indicated his desire to to see the emails.  None of his wording or behavior seemed consistent with sarcasm (one does not normally say “to be honest with you” when one is joking).  And his seeming joy at the prospect of someone releasing Clinton’s missing emails seems to belie any assertion that he does not desire that to happen.  In other words, the sarcasm excuse seems contrived, at least as to the issue of release.

Wolves as wolves, and the future of the Justice Department

One of my favorite lines from my favorite opinion of Justice Scalia’s – his dissent in Morrison v. Olson – is his observation that some cases raise issues that will affect the equilibrium of government power in ways that are not obvious.  Those threats to the separation of powers are wolves, he observes, that appear in sheep’s clothing.  “But,” Scalia stated confidently, “this wolf comes as a wolf.”

Of course, he was right.  One wonders whether the same might be said about Donald Trump.  Despite Trump’s pliable relationship with the truth, his pandering, his waffling, his refusal to answer questions about his Obama birtherism, and his seeming disdain for meaningful conversations about the substance of governing, he has not concealed his weakness on constitutionalism.  Time after time, his disregard for, or ignorance of, constitutional government has been on prominent display.  Puffy assertions by folks like Newt Gingrich that Trump is the only candidate who would protect the Constitution are so demonstrably false as to be worthy of harsh and sustained mockery.

That’s why those Republicans who prefer Trump to Clinton solely on the grounds of a potential Supreme Court appointment seem, though not unreasonable, a bit short-sighted: promising to appoint constitutionalist conservatives to the Court rings hollow if the President himself does not understand how to – nor does he care to – protect and defend the Constitution.  And while it is true that the institutions of American government are likely strong enough to withstand a Trump presidency, why would we voluntarily put our institutions to that test?  Doesn’t it say something about the intolerable danger of a candidate that we have to simply hope that the other branches of government will restrain his most dangerous tendencies?  What if we’re wrong?  It is not unreasonable to think that many in a Republican-controlled Congress would be too intimidated by Trump to defy him.  As I have said before, Trump supporters cannot credibly complain about President Obama’s alleged constitutional excesses.  And even Liberal constitutionalism is preferable to anti-constitutionalism.

So I was so pleased to read Orin Kerr’s assessment at VC, which I commend to readers, of a potential Trump Justice Department.  Those of us who worked at Justice, like myself and Kerr, and who have deep affection for the DOJ as an institution, are rightly concerned about what a Trump agenda would do to the enforcement of federal law and the federal Constitution.  And Kerr covers this ground well in his piece.

Most notably, though, Kerr concludes with the following observation about a Trump DOJ: “If you aren’t scared, you aren’t paying attention.  A fascist thug has won the GOP nomination, and now has a very good shot at becoming president of the United States.  And he hasn’t run in sheep’s clothing.  As Justice Antonin Scalia might say, this wolf comes as a wolf.”

 

Could the peddlers of the “treason” charge please read the Constitution?

I have been trying desperately to avoid commenting on the Republican Convention.  The Convention, while certainly having its interesting moments, has demonstrated how a once great political organization – an organization of statesmen, of character, and of the Constitution – can come undone when raw emotion overwhelms reason and prudence.  Too many (though not all) in the Party have allowed the gathering to devolve into a display of disgusting and belligerent rhetoric, ignorant slurs, and political thuggery.  It’s not just demeaning to their political opponents; it’s demeaning to Republicans.  Just ask Ted Cruz.

So I have avoided posting about the details of the last three days.  But today brought a story within my wheelhouse that I felt compelled to mention.  Consistent with the entire tone of Trump’s new Republican Party of late – that it is not enough to disagree with Hillary Clinton, or even to vote for someone else, but that her opponents must actually spit upon her face every chance they get – one of Trump’s advisors, a veteran, suggested that Clinton be executed for treason by a firing squad.  Really.  Time has the story here.  The Secret Service is apparently investigating.

Normally, I would not comment on this.  But I’m working on a treason project now and so I’m giving attention to this stuff.  And a veteran should know better.  Set aside the outrageous idea of suggesting the official killing of a political opponent.  On the legal side, the suggestion repeats a rhetorical theme that I find troubling.  Folks bent on this kind of rhetoric tend to throw around the word “treason,” either because they do not know what treason is, or because the intend to use it as an epithet rather than a serious legal claim.  But accusing a person of treason, of disloyalty to their country, is a serious charge.  For treason is an actual crime, defined by the Constitution and by a federal statute.  See 18 U.S.C. 2381.

The Constitution is clear that its definition of treason against the United States is the only one: it requires levying war against the United States, or adhering to their enemies, giving them aid and comfort.  It is beyond clear that Clinton’s conduct with respect to the tragedy in Benghazi comes nowhere close to the constitutional definition.  In addition, what I call “Adherence Treason” requires proof of intent to betray the United States.  Whatever mistakes Clinton made with respect to Benghazi, it is ridiculous to suggest that she made those mistakes with an intent to aid the enemy (and which “enemy” would she have aided, anyway?).  And I have seen no evidence for it.  See a prior post on these matters here.

Contrary to an apparent belief on the part of this advisor, and perhaps others, the Uniform Code of Military Justice does not define treason (it does define “aiding the enemy,” which contains elements different from treason and lacks the proof requirements).  And even if it did, it could not define treason in a way that conflicts with Article III of the Constitution, just as section 2381 does not.  As I have said in a previous post, there is strong legal authority for the proposition that treason cannot be alleged in a court-martial, but rather can only be alleged in a civilian court.  Moreover, death is not an automatic punishment for treason (nor is it for aiding the enemy).  The Constitution gives Congress the power to “declare” the punishment for treason, and Congress has determined that, although the death penalty is available, there is no minimum punishment.

I understand that this advisor served this country with distinction, for which we should be grateful.  But upon and during his service, he swore to protect the Constitution.  It is perhaps time for him to read it, and give special attention to Article III.

 

Gun rights, criminal law enforcement, and Justice Thomas

The officer-involved shootings in Baton Rouge and Minnesota last week – combined with the premeditated, cold-blooded murders of five Dallas Police officers, with a firearm – remind us once again of the complicated legal and political issues created by gun violence.  In Dallas, it is notable that the killer did not target vulnerable people in a gun-free zone; he targeted law enforcement officers in public that he knew were armed, and trained to kill with their own guns.  In Baton Rouge and Minnesota – where we are still learning additional facts, making it premature to draw definite conclusions about the legality of the official conduct there – the legal issues are potentially even more complex because they concern the intersection of gun rights and Fourth Amendment law.  I have posted previously (here and here) on the Fourth Amendment issues being created by the liberalization of gun laws around the country.  One persistent problem involves the ways in which a broad reading of gun rights, combined with an accordingly narrow reading of search of seizure powers, could place law enforcement officers in the untenable position of knowing that a person is armed but lacking the power to temporarily detain and disarm them, absent some additional reasonable suspicion beyond the fact that the person is armed.

With that in mind, I want to shift to an interesting but slightly different gun rights problem, one that Justice Thomas raised at the end of the Supreme Court’s term.  In his dissent in Whole Woman’s Health v. Hellerstedt, the Texas abortion law challenge, Thomas writes that, “[t]he Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.  But our Constitution renounces the notion that some constitutional rights are more equal than others.”  He continued, “[u]nless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

I am not sure to what he is referring when he speaks of “many” enumerated rights being disfavored, but I am confident he is referring to one in particular: the Second Amendment right to keep and bear arms.  I have such confidence because on the same day, in Voisine v. United States, Justice Thomas offered an even more comprehensive criticism of what he views as the disfavored nature of Second Amendment rights.  In Voisine, Thomas – speaking only for himself, as Justice Sotomayor joined only the first two parts of his dissent, but not Part III – explains that the federal law at issue has the effect of imposing a broad disability on gun ownership, a decision that is left to the discretion of federal and state prosecutors.  “We treat no other constitutional right so cavalierly,” he said, explaining  that a majority of the Court would likely not approve of a law that imposed a lifetime ban on publishing by a person convicted of misdemeanor libel.  He also repeated a line that he used previously in dissenting from the denial of certiorari in a Second Amendment challenge, saying that “the Court continues to ‘relegate the Second Amendment to a second-class right.'” (quoting his dissent in Friedman v. Highland Park).

What was especially notable about his Voisine dissent, though, was his observation about the limits on gun rights.  He acknowledged the limitations described in District of Columbia v. Heller, and appeared to concede that gun rights are not absolute.  But then he noted the broad disabilities approved in Heller – presumptively valid prohibitions on possession by dangerous persons, specifically felons and the mentally ill – and described this as merely dicta.  Apparently, Thomas would approve of narrow gun regulations that “neither prohibit nor broadly frustrate” the exercise of Second Amendment rights.  But the disabilities placed upon felons and the mentally ill, for example, are so broad that they would be valid only when applied to those who are not the “people” protected by the text of the Second Amendment.

Is Justice Thomas suggesting that the firearm possession prohibitions in 18 U.S.C. 922(g) – which impose broad disabilities on a wide variety of citizens, from felons to the mentally ill to unlawful drug users to persons dishonorably discharged from the armed forces to persons convicted of misdemeanor crimes of domestic violence – are unconstitutional?  Is he suggesting that one of the most important gun regulations in the federal criminal law arsenal – the felon-in-possession law – is invalid?  That strikes me as a remarkable position to take, especially in light of the fact that Thomas joined the Heller majority opinion.  But Thomas’s description of this language in Heller as mere dicta, and his concern that these kinds of gun regulations sweep so broadly as to forbid firearms possession “at all times and in all places,” certainly suggests that Thomas is thinking in these terms.

I will be interested in seeing whether future constitutional challenges to the 922(g) prohibitions make use of Thomas’s language from Voisine.  I cannot imagine there are any other votes on the current Court for such a reading of the Second Amendment.  Such a reading would surely frustrate the enforcement of much federal criminal law, and runs counter to the claims of many gun rights advocates who say they still want to “keep guns out of the hands of criminals” and other dangerous people.  Perhaps this is not what Thomas was getting at.  And perhaps he would approve of similar gun possession bans that are narrower in scope (say, a ban for a definite time period).  But his language seems at least to be a nod in the direction of Second Amendment rights that are broader than those recognized in Heller.

The “Law and Order Candidate”? Seriously?

Thanks to new duties at work, my time for posting on this site has grown sparse.  And I would prefer not to spend that precious time repeating myself here.  But as someone who worked on the prosecution side of violent crime cases, and who has spent his career concerned about problems of crime and violence, I heard something yesterday that I could not let pass without a comment.  I will hope to make such responses rare.

At a time when violence is erupting around the country, crimes rates are increasing, and tensions between law enforcement and citizens are a subject of another national conversation, there has never been a more important time in contemporary America for political leadership that understands the delicate balance between liberty and order under constitutional government.  It was therefore a moment worthy of maniacal laughter when white-shoed wine salesman Donald Trump announced to the world that he is (gulp) the “law and order candidate.”  Yes, just days after telling us that he would protect “Article XII” of the Constitution (of course, there is no Article XII), and offering yet another bizarre compliment to yet another brutal dictator, The Guy In The Hat once again reminded us that he understands neither “law” nor “order.”

You cannot be the candidate of law and order if you appear to accept, even encourage, private violence at a political rally, and say publicly that you wish you could punch a protestor in the face, and long for the good old days when you could beat up protestors without consequence.  (See prior post here.)

You cannot be the candidate of law and order if you offer to pay the legal fees of a people who engage in unlawful violence.

You cannot be the candidate of law and order if you do not understand the role of courts in American government, such as when you insist that Supreme Court Justices conduct investigations of your general election opponent.  (See prior post here.)

You cannot be the candidate of law and order if you habitually file meritless lawsuits, which clog our judicial system and undermine the ability of judges and courts to administer justice in worthy cases.

You cannot be the candidate of law and order if you question the integrity and fairness of distinguished federal judges based solely on their race.

You cannot be the candidate of law and order if you boast publicly about receiving the endorsement of a man convicted and sentenced to prison for raping a teenager, approvingly calling him a “tough guy,” or if you talk about inviting a boxing promoter who has a lengthy criminal history, including a history of violence, to speak at your nominating convention.

You cannot be the candidate of law and order if you threaten a free press with the expansion of libel laws.

You cannot be the candidate of law and order if, in a Nation whose laws presuppose and protect religious pluralism and religious tolerance, you threaten to forbid entry to people based solely on the god they worship, and mock other candidates for their practice of minority religions.

You cannot be the candidate of law and order if you threaten to indiscriminately kill the families of terrorists.

You cannot be the candidate of law and order if you have authoritarian tendencies that, combined with ignorance of constitutional government, threaten the separation of powers.

Whatever Trump’s other virtues or vices may be, I know of no credible prosecutor who would look at Trump’s record and identify him as a “law and order” guy.  Those of us who spent significant parts of our careers working in the law enforcement community, making sure that violent criminals were caught and seriously punished, have endeavored to secure some understanding of how and why “law and order” is important in a free society that values liberty and justice under a written Constitution of limited and enumerated powers.  Trump lacks any such understanding.

Law empowers and it restrains.  “Law and order”- and when we speak of order, we intend something tolerable, within which both liberty and justice can flourish – requires appreciating what law allows government to do, and what it forbids government from doing.  It means respecting rights, particular those of dissenters and those with minority viewpoints, while urging respect for lawfully constituted authority and institutions.  It means, in Madisonian terms, controlling the people while also controlling the government.  “Law and order” requires balance, not belligerence.

When Trump says he is for “law and order,” he likely means nothing of the sort.  Trump equates violence with toughness, belligerence and raw aggression with strength.  To Trump, prudence and restraint are tantamount to weakness.  But brute force is not “law and order.”  And prudence and restraint are indispensable virtues in governing a tolerably ordered society pursuant to the rule of law.

So, Trump the “law and order candidate”?  It’s a hilarious notion.  Except, there is a real (indeed, very good) chance he could win this election.  And it’s not so funny anymore.

More thoughts on the Comey announcement

I wanted to offer just a few additional thoughts on the FBI recommendation against prosecuting Hillary Clinton, now that the dust has settled after a surreal day in American politics.  There were already calls (see Politico here) for FBI Director James Comey to testify before Congress on this matter, and he has agreed to appear later this week. I think that could be a useful and revealing exercise if done properly, though I also think it could – as congressional hearings often do – devolve into a frustrating day of mindless finger-wagging and grandstanding that entirely misses the point and serves no ultimate purpose other than to waste the time of people with more important things to do.  I also think there is danger to the separation of powers in asking the DOJ to reveal its deliberative processes as to charging decisions (though that’s a more complicated claim in an exceptional case like this, where law enforcement makes such a comprehensive public announcement of its thinking).

First, Republicans have been – rightly, I believe – focused on the FBI Director’s failure to offer a more persuasive explanation as to his conclusion that no reasonable prosecutor would have charged Clinton, even under Section 793(f) (for gross negligence in mishandling classified information).   I, too, am troubled by the Director’s explanation, such as it was.  That is not to say that his ultimate conclusion – or that a federal prosecutor’s ultimate conclusion to that same effect – is not sensible or justifiable.  It is to say, however, that his conclusory statement about the “reasonable prosecutor” seems inconsistent with the facts that he enumerated about this investigation.  As I said yesterday, I would like to know more about this contention.  It may very well be that even a reasonable prosecutor would not seek an indictment under these circumstances – but that is very different from saying that no reasonable prosecutor would seek an indictment under these circumstances.

Second, there has been some attention given to other cases involving the mishandling of classified materials, most notably the Petraeus and Nishimura cases.  I’m not sure that it is enough to say that there have been other similar cases in which a person was prosecuted (Comey attempted to distinguish the Clinton case, though his attempt to do so seemed unpersuasive, at least as a reason for concluding that no reasonable prosecutor would seek an indictment here).  Rather, I would be interested in hearing about other similar cases that the DOJ investigated that did not result in a prosecution.  Of course, that information is likely harder to get.  But if Comey can show that similar kinds of cases have been investigated but not prosecuted, I think that would bolster his credibility on the Clinton case.  Examples that come to mind involve folks like Alberto Gonzales and John O’Neill and Martin Indyk (see Politico’s piece on previous cases here).

Third, yes, I think, the current DOJ will decline to prosecute.  But, so long as Clinton remains legally eligible for indictment, there is nothing to stop the DOJ from taking up her case later, Comey’s announcement yesterday notwithstanding.  Obviously, I am thinking of something very specific: the voters elect steak and water peddler Donald Trump as President; he installs a new Attorney General; and directs his DOJ to seek an indictment.  He has previously said that he would seek to prosecute her, and I have posted previously on whether this is something that he could do as President (it’s an interesting question of presidential power).  Trump has also said that he would base his selection of Supreme Court justices on whether they would investigate Clinton’s emails – once again demonstrating that Trump has absolutely no idea of how American government functions or of what the Supreme Court’s constitutional role is.  Of course, this all has the unseemly ring of prosecuting your political enemies for sport, simply because you can.  And whether there would be a revolt among line prosecutors on this matter is an open question.  But it is certainly possible to imagine a President Trump who would see a Clinton prosecution as an enforcement priority.

Finally, I  continue to think that Trump’s claim of the “rigged system” is dramatically overstated and self-contradictory.   Comey’s announcement yesterday was as devastating as it could have been in the absence of a recommendation to prosecute.  Clinton will have to spend week after week explaining away Comey’s findings.  Her prior statements on these issues will be played over and over again, and juxtaposed with video of Comey’s statements refuting her.  This hardly seems like the work of a law enforcement official rigging a system in her favor, determined to spare her any harm.  Comey, it appears, swept nothing under the rug.  No system rigged in favor of Clinton would produce such a scathing set of findings and announce them publicly for all the world to hear.  Moreover, Trump has already started using the Comey video and quotes in attacking Clinton (as always, refer to Twitter).  Surely Trump cannot claim that Comey is part of a rigged system while, at the same time, using Comey’s own words as evidence of Clinton’s unfitness for the presidency.  Trump is trying to have it both ways – hate the system, but use it to your advantage politically; the system is rigged, he says, but the very same system also publicly proved Clinton’s wrongdoing.

So Clinton will be damaged by this.  She has mostly been on defense against Trump, or simply waiting for the next Trump gaffe (which, let’s face it, seems inevitable).  But that strategy will only take her so far.  She needs to get on offense if she is to prevail.  That means the Trump oppo file will have to become more prominent than it has been so far in her campaign.  Trump versus Clinton is about to get much, much nastier.  Nice work, voters.  This is what you asked for.  (Wouldn’t it have been so much easier to just make John Kasich the Republican nominee, ditch the ugly circus, and start planning the Kasich Administration?)

FBI recommends against charges for Hillary Clinton

FBI Director James Comey today announced that the Bureau is recommending against any federal criminal prosecution of Hillary Clinton related to her email practices while Secretary of State.  FBI’s coverage, and the Director’s statement, are here.

This announcement was only of limited help to Secretary Clinton.  The Director’s announcement lambasted her for her handling of sensitive material, and exposed the reality that she used multiple unsecured email servers and sent/received emails that contained highly classified subject matter.  But, according to the Director, Clinton did not act willfully or intentionally, nor did this case involve an effort to obstruct justice or to engage in any disloyalty to the United States.  So even though there was evidence that could have implicated the federal criminal statutes regarding the handling of classified information, in Comey’s determination, no reasonable prosecutor would have prosecuted the conduct at issue here.

Legally, the issue is not dead yet.  The FBI does not charge crimes or seek indictments.  It is the prosecutors at Main Justice who will have the final say as to actual prosecutions.  But it is almost impossible to imagine that Main Justice will reject this recommendation.

While I think the decision is defensible when one views the particular exercise of prosecutorial discretion here, I am interested in Comey’s thinking.  He spends considerable time in his announcement discussing the improper conduct of Secretary Clinton, and concludes that “there is evidence that [she and her colleagues] were extremely careless in their handling of very sensitive, highly classified information.”  One might imagine that “extremely careless” means the same thing as “grossly negligent,” which is the mental state that one of the relevant statutes contains.  See 18 U.S.C. 793(f).  This will not escape the attention of Clinton’s critics today and in the coming days and weeks.  And if that is true – that Clinton was “extremely careless” – then it is not clear to me why no reasonable prosecutor would bring a prosecution for mishandling classified information in a grossly negligent manner, pursuant to section 793(f).

Once one considers the history of prosecutions under the Espionage Act, however, and the context of this particular case, it is easier (though not easy) to see why a federal prosecutor might choose not to pursue an indictment here.  I believe Comey was more interested in those factors than the issue of her mental state.  But Comey’s announcement also focuses substantially on evidence of intentional conduct, while seemingly minimizing the evidence of gross negligence.  Again, it may very well be that even with evidence of gross negligence, there were other countervailing prosecutorial considerations that militated against seeking an indictment.  That is understandable here.  Still, I would have liked a more detailed explanation on this particular detail, which I think Comey’s statement leaves mostly unexplained.  And I will be interested in seeing whether Comey speaks further about this issue in the future.

Today’s decision will almost surely spare Clinton a criminal prosecution, but it will do very little to squelch questions about whether she should be the next President.  The press will hound her with inquiries about the FBI’s conclusions.  And the FBI’s findings will play into every narrative about Clinton that her campaign would wish to avoid: that, her opponents will argue, she is an inveterate liar who is allowed to live by her own rules and whose corruption receives the constant protection of a Washington legal and political establishment that will never change as long as people like her sit atop the governmental food-chain.  And bellicose TV game show host Donald Trump will likely do everything in his power (which is to say, his Twitter account) to push this narrative over and over again.

In light of the findings and the coming onslaught, then, Clinton may want to consider a deeper and more sincere public mea culpa than we have seen thus far.  At the same time, it was always struck me as odd that the Clinton campaign has allowed Trump – of all people – to paint her as a liar, when she has an easy response that would simply involve publicly cataloguing Trump’s whoppers.  She has also allowed Trump to paint her as someone with “bad judgment,” though she has a smorgasbord of examples from which she could choose to show Trump’s poor judgment.  Saying he is “temperamentally unfit” is a useful phrase (and true enough), but still of limited value when she allows him to paint her as he has done thus far.  And today’s events won’t help her much.

Finally, a word about the folks at Justice.  The one Trump line of attack that he has been pushing most aggressively – that Clinton is benefiting from a “rigged system” – is a tough sell in this case.  James Comey is a man of real integrity, a hard find in official Washington.  He knows the principles of federal prosecution, understands the exercise of prosecutorial discretion, and has a long and distinguished record of apolitical service and decision-making in the DOJ.  It will be nearly impossible to make Comey into some political hack who is part of a legal establishment looking out for the Clintons and their cronies.

So I suspect that this line of attack will fail, and it should.  Trump’s attack essentially accuses the entire federal law enforcement community – both at FBI and Main Justice – of political hackery and of perpetuating a criminal justice system that is unfair to all but the powerful.  Nonsense.  These are folks who deal with the most important and consequential criminal and national security issues that our Nation faces.  While not perfect, they care deeply about spending their days trying to get it right.  They can do without the distant criticism from a man who has zero experience in sniffing out and punishing crime – and whose most important decision-making in recent years has involved the fake employment status of Meatloaf and Bret Michaels, or the location of another golf course that will be accessible only to the wealthy and privileged.

Supreme Court narrows scope of an “official act,” but keeps “misdemeanor crime of domestic violence” broad

While the decision in Whole Woman’s Health will dominate the news today, I note the other two cases of interest that came down today, as well.

In McDonnell v. United States, a unanimous Court – per the Chief Justice – vacated Governor McDonnell’s conviction under federal anti-corruption statutes, including honest services fraud and Hobbs Act extortion.  Though the term “official act” appears in the federal bribery statute but not the honest services statute or Hobbs Act, the parties agreed that this prosecution would use the bribery statute’s understanding of “official act” as the basis for applying the other relevant statutes.  See 18 U.S.C. 201(a).  The Court held that McDonnell’s jury received erroneous instructions on the meaning of an “official act.”   An “official act” is a “decision or action” on a “question, matter, cause, suit, proceeding, or controversy.” But “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act,'” the Court held.  Consequently, because the Court gave a narrowing construction to the statutes, there was no need to invalidate either the honest services statute or the Hobbs Act as unconstitutionally vague.

Rather than say whether McDonnell’s conduct fits the understanding of “official act” that the Court supplied here, the Court remanded the case to the Fourth Circuit to reconsider that question under the new standard.  So McDonnell is not out of the woods yet.  But his case is demonstrably stronger now.  And one wonders whether DOJ might be well-served to let go of this one.

While the Court’s reading of federal law is defensible as a matter of interpretation, I continue to believe this case was decided largely on concerns about the separation of powers, and perhaps even federalism.  This was a point that Justice Breyer articulated during oral argument, and I think the opinion tries to account for those concerns.  As the Court’s opinion explains, there was concern that the broad theory of the case that the Government had posited would have a chilling effect on governmental action in the political branches.  That is, elected officials might be wary of providing some service to, or meeting with, a constituent or citizen for fear of crossing the bounds of a prohibited quid pro quo.  Moreover, the Court explained that it had concerns about applying federal anti-corruption statutes in a way that would impose federal standards of conduct upon state and local officials and potentially displace state and local ethics or criminal laws.  Remember that Virginia did not pursue charges against McDonnell.

The remaining case today was Voisine v. United States.  There the Court held that a conviction for reckless assault on a domestic partner constitutes a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. 922(g)(9).  Using the definition in 18 U.S.C. 921(a)(33)(A), which requires the “use of . . . physical force,” the Court held that a reckless assault involves the use of physical force just the same as intentional or knowing assault.  Practically speaking, this means that a person with a conviction for a reckless domestic assault is forbidden under federal law from ever owning a firearm.

As sometimes happens in close cases like this, the Court’s opinions turned into a rather abstract debate on the criminal law.  If you like mens rea theory, you’ll love Justice Thomas’s dissent.  But beyond the high-level (and, yes, important) debate over the meaning of various mens rea terms, this case involved the serious matter of domestic violence committed by two men from Maine who also owned guns.  When officials began investigating Voisine for killing a bald eagle, they learned that he had a conviction under Maine law for reckless assault on his girlfriend, and that he owned a rifle.  Armstrong had a similar conviction for assaulting his wife.  Then, when he was the subject of a drug investigation, law enforcement officers found six guns and a large amount of ammunition in his home.  The Court found that these prior convictions were sufficient to bring both men within the ambit of 922(g)(9).

This case is a victory for proponents of tighter restrictions on firearms ownership.  But the Second Amendment implications did not escape Justice Thomas.  In a portion of his dissent in which he wrote only for himself (Justice Sotomayor joined the others parts of his dissent, but not Part III), Justice Thomas lamented that the Court’s broad understanding of the firearms possession disability here was likely unconstitutional.  Thomas clearly indicated this possibility at oral argument, when he broke his ten years of silence by asking the Government a question about the Second Amendment implications (“can you give me another area where a misdemeanor violations suspends a constitutional right?”).

I will have a bit more on the Thomas dissents in Voisine and Whole Woman’s Health in a subsequent post.  I see them as connected.