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.

 

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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.

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.

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

I rarely comment on the President’s tweets, unless they implicate a legal or constitutional issue of relevance.  And I am confident that everything has been said already about the President’s repugnant tweets concerning Mika Brzezinski and Joe Scarborough.  There is a follow-up issue on which I prefer to focus, but I will add only these thoughts on the tweet itself.

First, using a Twitter account to insult people is a rather pathetic form of “counter-punching,” and probably should not count as such.  In this context, “counter-punching” would be appearing in person on Morning Joe and saying to Joe and Mika’s faces exactly what the President said via Twitter.  Second, even if it is “counter-punching,” our civil society — and notably our criminal law — has always taken an unkind view of certain disproportionate forms of “counter-punching.”  If someone pushes me on the subway, or insults me on the street, or slaps me in the face, I do not have the right to shoot him in the forehead with a rifle.  Proportionality matters.

That said, another issue arose yesterday during Morning Joe that has received some attention.  During yesterday’s broadcast, Joe and Mika described a story in which, according to them, the President — through one or more of his staff at the White House — threatened to permit the publication of a story in the National Enquirer about Joe and Mika’s personal life together if they refused to call the President and apologize for their negative commentary on him.  If they called and apologized, Joe’s account goes, the President would use his influence and connections with the Enquirer to kill the Enquirer story.  The President denies the account as it was told on the show, but Joe claims to have documentary evidence to prove the version he told.

Several commentators have explored whether this amounts to criminal extortion or reputational blackmail.  I want to add just a bit more to the criminal law angle, but I will reserve a discussion of the extortion statutes for a separate post.  Instead, I will focus this post on the potential deprivation of constitutional rights and conspiracy to do so, both of which are serious federal crimes.

For purposes of this legal discussion, I will assume the accuracy of Joe’s description of the events, though we still do not know for certain what exactly happened and it is possible that Joe’s account leaves out salient details that could affect the legal analysis here.  I also interpret his account as not simply an effort by the President to seek an apology, but also to induce Joe and Mika to stop making negative comments about the President and to cover the President in a positive light (otherwise, what’s the point?).  So based on this, here are the legal issues that I think could be relevant that concern the potential criminal deprivation of civil rights.

If Joe’s account is accurate, then it is possible that the President has endeavored to coerce the media into doing something with its coverage, or refraining from doing something with its coverage, by threatening reputational or financial harm to television hosts based on the content of their speech (or, worse still, the viewpoint expressed).  If so, this has very serious First Amendment implications, and raises the question of whether the President has willfully deprived Joe and Mika of their First Amendment — and perhaps equal protection — rights under color of law, in violation of 18 U.S.C. 242.

As always, in any section 242 case, there is the question of what “willfully” means.  The Supreme Court said in Screws v. United States that this includes “open defiance or reckless disregard of a constitutional requirement which has been made specific and definite.”  There may also be some question as to whether the President was acting “under color of law,” if he was relying simply on his private relationship with the Enquirer rather than on any official power as President.  But there is case law holding that an official acts “under color of law” when he uses the victim’s fear of his power as a public official to induce the victim to do something or refrain from doing something.  See United States v. Giordano, 442 F.3d 30 (2nd. Cir. 2006).

And that connection is strengthened if the President used White House staff to communicate his threats.  Indeed, if Joe’s account is accurate, then the use of White House staff would seem to implicate 18 U.S.C. 241, which says that it is a crime for “two or more persons to conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”  The conspiracy problem is worse still if the President formed an agreement with the folks at the Enquirer in this regard, though the Enquirer denies any contact with the White House on this specific matter.  The conspiracy against rights statute does not require color of law, nor does it require an overt act in furtherance of the agreement.  Criminal liability attaches the moment that the agreement is formed.

Of course, presidents and other politicians often use their position to influence media coverage (granting special access, etc.).  Doing so is not typically thought to implicate the First Amendment.  The question here is whether, assuming the veracity of Joe’s account, there is something different — and constitutionally pernicious — about coercing a change in viewpoint by threatening to allow publication of potentially damaging information about a media figure’s personal life.  The act-omission distinction might also be important here under section 242 (if the allegation is simply that the President failed to do something), although the theory could be that the threat itself constitutes the deprivation.

All of this is subject to the usual caveats that, first, it is not clear that the President violated a criminal law; and second, even if he committed a criminal offense, he likely would not be prosecuted while in office.  Still, as I have said before, this would not immunize him from a congressional investigation or impeachment.  Some may think that further discussion of this story makes a mountain out of a molehill.  But if Joe’s account is true — if the President used his office, and those in his charge, to communicate to prominent cable news hosts that he would greenlight, or at least not intervene to stop, a potentially damaging story about their personal lives as a way of coercing them into apologizing for negative content and giving him more positive coverage — then it is hard to imagine how this would not constitute a serious abuse of power and a threat to the First Amendment of the Constitution.  And it is surely worthy of a congressional inquiry.

Revitalizing Congress

Congress does not work for the President.  Congressional staff do not work for the President (let’s set aside the detail problem for now).  Just as Congress should not endeavor to destroy the President, neither should it seek to protect him.  It is not Congress’s duty to clear a path for the President or to help him deliver on presidential campaign promises.  It is, rather, the responsibility of Congress to check the President and to assert its own institutional prerogatives, using the limited tools that the Constitution has afforded it.  Unfortunately, loyalty to the president or to a political Party has usurped what should be the Senator or Representative’s ultimately loyalties: the legislative branch they serve, and, chiefly, the Constitution.

The entire enterprise of congressional oversight and investigation of the executive branch depends upon accepting the premise of institutional defense.  Senators and Representatives must accept that Congress must gather facts and evidence from the President and his subordinates in order for Congress to fulfill its constitutional role in the separation of powers.  That is, congressional oversight and investigation of the executive depend upon a recognition that the institutional interests of Congress are paramount to any loyalties owed to the President or to the Member’s political Party.

When congressional oversight and investigation are viewed merely as extensions of Party politics and political campaigning, however, oversight and investigation become meaningless as legislative prerogatives.  Congress consequently becomes weakened institutionally.  While there are certainly important bipartisan exceptions, Members of both Parties, over time, have too often either abused or ignored their responsibilities to conduct effective and meaningful oversight and investigation in aid of Congress’s constitutional functions, instead serving as blockers for the president during the opposition’s pass-rush.

Madison, in Federalist 51, described legislative power as the predominant authority in a republic.  He explained that this requires dividing legislative authority (into distinct bodies) and fortifying the executive (as with a veto). Hamilton, too, acknowledged in Federalist 73 the “superior weight and influence of the legislative body in a free government.”  (Hamilton, in fact, spent considerable time in The Federalist defending the veto, worrying about the accumulation of legislative power, and explaining how the executive could defend itself against the legislature, even noting the “hazard to the executive in a trial of strength with that body.”  How quaint.)  And the Supreme Court has consistently recognized that the power to investigate is a function of Congress’s power to legislate.  But modern politics have changed the way the institution operates, the way it is perceived, and the way the executive relates to it.

The over-sized modern presidency has far greater national stature than even the most high-profile Senator or Representative, and exerts tremendous influence over individual Members, influence that enables the President to dictate the content of national legislation and, often, the path of legislative oversight.  For its part, the modern Congress has contributed to the weakening of its place in the constitutional system.  The “dysfunction” of Congress is a subject well-covered in the literature, and although it is likely the case that many Democrats and Republicans privately enjoy cordial relationships, that privately held goodwill rarely manifests itself in the day-to-day public work of the institution.   The end result is that the venerable institution of Congress appears to be a mere wing of each Party’s national political infrastructure.  And when the majority in either chamber shares the President’s Party, that chamber’s majority appears to be transformed into a mere clerk of the executive.  This persistent quiescence with the executive further weakens the institution and minimizes its public stature.

But Congress can, at long last, fight back.  Oversight and investigation offer a good place to start, because this is an area in which Members from different parties can coalesce in defense of institutional interests.  Congress can also staff up, and increase the budget for congressional staff, so that Congress can compete with the other branches (especially the executive branch) in securing and keeping highly-qualified professionals.  Via our friends at Leg Branch, this recent piece in the Washington Post explains some of the difficulties.

The current controversies have given the Congress the opportunity to revitalize itself, to assert its institutional independence from the President and the dominant Parties.   If it does not (and there are signs that many individual Members are not interested in doing so), it will remain feckless and weak.  Madison and Hamilton were right to worry about the legislature’s ability to absorb the powers of the other departments.  The President, as Hamilton argued, should have tools for his defense.  But the accumulation of power into the executive is no better than accumulation in the Congress.  And Hamilton properly explained in No. 73 that the partitioning of power among the branches also teaches us that the branches should be independent.  Congress does not work for the President — and its Members should not be satisfied with perpetuating the appearance that it does.

 

Can the President commit a crime or an impeachable offense even when exercising constitutional power?

America’s civic education continues.  Although much of what we have endured recently is not particularly good news for the Nation, it should at least be heartening that nearly 20 million people watched the (underwhelming) Comey hearing.  If only that many Americans took such an interest in congressional hearings more generally.

We have also heard lately about the theory of the unitary executive, which some observers have used to explain why the President’s actions with respect to James Comey are neither criminal nor otherwise improper.    Former Speaker Newt Gingrich asserted something like this recently when he said that the President “cannot obstruct justice,” citing the fact that the President is the chief executive  (as others have duly noted, such as in the linked article from The Hill, Gingrich voted to impeach President Clinton on obstruction of justice grounds).  Gingrich’s quote calls to mind President Nixon’s 1977 assertion to Sir David Frost that, “when the President does it, that means that it is not illegal.”

At its core, the unitary executive posits both an obvious textual notion (that the executive power is vested in “a” president) and a structural one (that the president enjoys all executive power and thus controls anyone who assists him in exercising such power).  But the unitary executive model does not really answer two critical questions that have been raised by the Trump-Comey saga: first, when, if ever, does the exercise of constitutional power by the president amount to a punishable crime?; and second, at what point does the exercise of a constitutional power constitute an abuse of such power?  These two questions are at the heart of a distinction that has become lost in the debate over criminality, and that is the distinction between violations of the existing federal criminal law and the political world of impeachable offenses (see my earlier post here).

Because the President has the power to “take care that the laws be faithfully executed,” he has the power to determine who will be prosecuted and investigated.  Therefore, as some have argued, the President had the authority to instruct Comey not to continue pursuing former National Security Advisor Mike Flynn, and doing so cannot be obstruction of justice.  And, the argument continues, because the President has the appointment power, as well as the Take Care Clause power, firing the FBI Director also cannot be obstruction.  I have before elaborated (in the above linked post) upon the obstruction statutes and explained why I think reliance on those statutes is problematic in this case.  But let’s set aside the applicability of the statutes as a matter of statutory interpretation and federal prosecutorial practice, and focus instead upon the question of how far the President’s power extends.  Do his motives matter when exercising his powers?

Suppose, as a hypothetical example, that the President gathered the FBI Director and Attorney General in the Oval Office and gave the following order, pursuant to his Take Care Clause powers: in an effort to root out terrorists, the FBI shall enter and search, without a warrant and without any particularized suspicion, the home of any Muslim living in the United States.  The FBI and AG agree and the order is carried out.  Such action would implicate not just the Fourth Amendment, but also the federal civil rights statute relating to willful deprivations of rights, 18 U.S.C. 242, as well as the civil rights conspiracy statute.  18 U.S.C. 241.  Is the President immune from subsequent criminal prosecution merely because he has the power to direct federal investigations and prosecutions?  Could the President be impeached for issuing such an order, on the ground that even though he has the power to direct investigations, this was a serious abuse of that power?

Let’s take another example.  Suppose the President agrees with a representative of Defendant D that the President will order the Justice Department not to prosecute D for a crime that D has committed.  In exchange for that official act, the President accepts from D one million dollars.  Is this conduct bribery, notwithstanding the fact that the official act for which there is a quid pro quo is a constitutional power vested in the President?  Is it impeachable? (remember that the Impeachment Clause of Article II, section 3 specifically lists bribery as impeachable).

Or, to take the example of another power vested solely in the President — the power to grant reprieves and pardons for offenses against the United States — suppose the President granted a pardon to D in exchange for a payment of one million dollars.  Is the President’s motive for the official act of granting the pardon irrelevant simply because the corrupt motive, and the quid pro quo, are tied to the exercise of a constitutional power vested in the President?

I ask these questions because I think it is important to note that even if we accept the unitary executive model, and even if we believe that directing criminal investigations and prosecutions is a core executive function over which the president should have control, we can still acknowledge that what motivates a President in carrying out that function could still have legal significance.  In my bribery examples, for instance, the power of ordering the DOJ not to prosecute, or the power of actually granting the pardon, are not, without more, the problem; the problem is that those exercises of power were intended to facilitate bribery.  Indeed, because bribery requires an official act, it seems clear from its inclusion in the Impeachment Clause that the Framers understood that a President can still be held legally accountable even when the offense arises from an exercise of official power.

It may very well be that President Trump has committed neither a crime nor an impeachable offense.  But whether he has committed either cannot, I think, depend merely upon whether his action was based on the exercise of a constitutional power.  Perhaps the President’s state of mind matters.  After all, implicit in an “abuse of power” is the existence of an official power that can otherwise be legitimately used.

Which leads to a final point about the distinction between criminality and impeachment.  Much of the attention will fall upon the Special Counsel.  But the congressional investigations here are also important because, unlike the Special Counsel’s investigation (which is criminal in nature), the Congress can gather facts and evidence regarding abuses of power that may not meet the defined elements of a crime or be prosecutable.  The congressional investigative power is at once broader and more narrow than the Special Counsel’s work — Congress cannot criminally prosecute the President, but it can engage in oversight of the executive, which includes the power to impeach and convict.  That distinction is critical if one assumes that a sitting President cannot be criminally prosecuted.  Problem is, would a Republican Congress ever allow impeachment to proceed?  To answer that, we need to take a deeper dive into the existing dynamics of a Senator or Representative’s institutional loyalty to Congress, rather than to the President or the Party.