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

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

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

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

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

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

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

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

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

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

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

Several issues come to mind.

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

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

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

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

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

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

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

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

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

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

Investigations, privileges, and Bannon’s gamble on contempt

On Tuesday, former White House chief strategist Steve Bannon refused to answer questions from the House Intelligence Committee concerning his time in the Trump transition and on the President’s staff.  He was immediately subpoenaed, and required to appear again yesterday.  As Politico reports here, he communicated to the Committee that its demand was unreasonable.  He further indicated that he would be working with the White House to determine whether it would be asserting executive privilege to prevent him from testifying.  Chief of Staff John Kelly indicated on Wednesday, however, that the White House had not asserted executive privilege on Bannon’s behalf, contradicting some earlier understandings.  See The Hill report here.

If Kelly is right, then Bannon’s action fits a pattern of witnesses in the congressional Russia investigations simply choosing, on their own, when they will answer questions and when they will not, with no apparent consequences.

Several problems emerge from this saga.

1.  Bannon cannot assert executive privilege.  Only the President can.  Bannon’s apparent assertion Tuesday (if Kelly was right) and again yesterday, is based on what I call preemptive executive privilege.  This is when a witness hypothesizes that an answer might possibly implicate executive privilege, even though it has not been invoked, so the witness will preemptively refuse to answer based on the future possibility of a presidential invocation.  This is problematic, and Congress should put a stop to it.  Unless there is a clear basis for a legitimate assertion of the privilege—in which case there is an argument that Congress should be sensitive to the President’s constitutional prerogatives—Congress should demand that the witness answer or, if not already under subpoena, be subpoenaed and then held in contempt for any refusal to comply.  In most cases, Congress’s prerogatives will outweigh these preemptive assertions.

2.  Bannon was also issued a subpoena to testify before the grand jury in the Special Counsel’s criminal probe, though apparently he is now being allowed to meet with federal prosecutors outside of the grand jury environment.  Bannon is reportedly saying that he will tell the Special Counsel “everything,” (see Daily Beast coverage here) though he apparently believes he does not have to answer to Congress (yet).  Bannon may be relying on an oft-heard claim about executive privilege and its basis in the separation of powers—it can be invoked against Congress but not in a probe within the executive branch.

This view misapprehends the privilege as it applies (to the extent that it does) before Congress.  First, it is wrong to suggest that the mere invocation of the privilege in a congressional investigation is per se adequate to enforce it.  While it is true that executive privilege has its foundations in the separation of powers, it is not true that any invocation of it in the courts or before Congress is necessarily effective.  The Supreme Court has never held that a congressional investigation must yield to a claim of executive privilege, and there is precedent for the opposite conclusion.  See, e.g., House Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  Of course, usually these kinds of disputes are resolved through accommodation, and that may well happen here.  Perhaps it should. But Congress could seek enforcement of the Bannon subpoena even if there is an invocation of the privilege.

My guess is that Bannon is betting against that.  Bannon clearly knows that he cannot avoid the Special Counsel through a claim of executive privilege, see United States v. Nixon, and yet I would imagine that Bannon is counting on Congress not seeking enforcement of the subpoena.  He has ample reason to bet on that, given this Congress’s lax enforcement of its prerogatives with other witnesses.  Or perhaps he is ultimately counting on a process of accommodation.  So, assuming arguendo that there is an invocation of the privilege on which Bannon could theoretically rely, the question is whether Congress will have the institutional backbone to enforce it, and call Bannon’s bluff.  (On the other hand, if the White House refuses to assert the privilege, perhaps Bannon will comply; or perhaps he will continue to resist and simply gamble on non-enforcement).

3.  Bannon refused to answer Tuesday and was subpoenaed.  On the spot.  And yet other witnesses from the Trump campaign have refused to answer questions and were not subjected to a subpoena.

In particular, consider that Donald Trump Jr. recently appeared before the Committee and refused to answer questions about his discussions with his father, raising a bizarre claim of attorney-client privilege (which has been largely debunked, see here).  Even if the assertion was legitimate, the attorney-client privilege, unlike executive privilege, is not a constitutionally-based privilege, and Congress could simply rule that the privilege should yield to the need for disclosure of the information it seeks.  If that is the case, then why did Trump Jr. not receive a subpoena?  Why has the Committee not compelled him, and others who have balked at answering certain questions, to appear again before the Committee and give the requested information or be subject to a contempt prosecution (as, apparently, is now being contemplated for Bannon)?

Investigative power is meaningless unless Congress is willing to compel testimony and punish non-compliance; otherwise, witnesses have no incentive to play ball with Congress.  The contempt power is one of the most important tools available to Congress.  And recent history shows that congressional Republicans know how to use it (ask Lois Lerner and Eric Holder).

If a Republican Congress can hold Lois Lerner in contempt for refusing to give testimony after a bungled assertion of the Fifth Amendment privilege (a constitutional privilege, and one that was later validated by the DOJ), then surely it can demand answers after an absurd assertion of the attorney-client privilege or a wholly preemptive assertion of executive privilege that probably doesn’t apply anyway.  If, like me, you think that it is critical that Congress investigate Russian active measures and take legislative steps to thwart further Russian influence, then it seems clear that Congress needs full information about Russia’s activities in 2016.  These witnesses may have important and useful information, and they should be required to give it, in aid of the legislative function.

The failure to insist upon important information from witnesses during a critical investigation offers yet another example of the damage that can be done to constitutional government when legislators become slaves to party loyalty and/or the president of their party.  Republicans in Congress must have a fuller appreciation for their role in the separation of powers and their institutional prerogatives (Democrats had the same problem during the last Administration).  They seem to have finally awoken to this notion when dealing with Steve Bannon.  But will they hold his feet to the fire?  And if so, what about the others who have simply taken a pass on cooperating?

 

Saipov and the federal death penalty

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

 

 

Criminality and impeachment after the Comey firing

James Comey is, by all objective accounts, a man of integrity, intelligence, and honor.  Like all of us, he is imperfect.  And like anyone serving the public at a high level, he has perhaps made judgments — in difficult and complicated, even untenable, situations — that are subject to legitimate criticism.  No one questions the President’s power to remove him from his position as FBI Director.  The question, rather, is whether it was appropriate under the circumstances to do so.

If the President’s removal of Director Comey was based on the President’s desire to influence or impede an investigation that he disfavors, and in which he could conceivably be implicated, that raises very serious, but also very complicated, legal questions. (Do not be distracted by the President’s claim that he is not under investigation; though he may not be the target of the investigation, one who is not the target can still become ensnared or implicated in an investigation.  It is difficult to believe that investigators are not also looking — or will not eventually look — into the President’s role, what he knew, and when he knew it.)

Four questions arise: 1) does the criminal law apply to the President when he commits an act that might otherwise be criminal but that is done in the exercise of a constitutional function?; 2) assuming the criminal law would apply, can a sitting President be prosecuted while in office?; 3) assuming the President can be prosecuted while in office, would the Justice Department do so?; and 4) criminality and criminal process notwithstanding, could the president be impeached for his conduct?

I will leave specific responses to the first three questions for a subsequent post, though it is worth noting here that, as some may recall from the legal discussion surrounding the (Bill) Clinton scandals, there is some question as to whether a sitting President can be criminally prosecuted.  Some respected constitutional scholars say no, criminal prosecution must wait until the President formally leaves office (and there is substantial support in constitutional history for this view).  See, for example, Akhil Amar’s work here.  Others say doing so is constitutionally permissible.  But the question I want to next explore is this: if the President does something that is an abuse of his power, or a substantial violation of his presidential duties, or even violates the Constitution, but does not actually violate the criminal law, is impeachment available?

Lots of recent commentary has focused on 18 U.S.C. 1505, one of the federal obstruction of justice statutes.  On its face, it looks like it applies to the President’s conduct.  Problem is, federal prosecutors are instructed, based on decided cases, that an FBI investigation does not constitute a “proceeding” for purposes of this statute.  See USAM CRM 1727. If the President is to be subject to an obstruction statute, it will have to be a different one, say, 18 U.S.C. 1512(c)(3) (but courts are split as to whether an FBI investigation is an “official proceeding” under this statute, and the statute requires that the person act “corruptly” — can the President be acting “corruptly” if he believes in good faith that his action was a legitimate exercise of constitutional power?).  So, proof of criminality in these circumstances is tricky.

This leads to a discussion of impeachment.  Does impeachment require the commission of a crime?

The President, according to Article II, section 4 of the Constitution, “shall be removed from office on impeachment for, and and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Treason and bribery are familiar as crimes (each has a well-established definition in criminal law).  But “other high crimes and misdemeanors” remains vague.  There is a fair amount of scholarship on impeachable offenses and I won’t endeavor to summarize it all here.  But a couple of sources are noteworthy.

Raoul Berger’s terrific book, Impeachment: The Constitutional Problems, concludes that this phrase — “high crimes and misdemeanors” — was drawn not from the English criminal law but from the impeachment of the Earl of Suffolk in 1386.  He explains that use of this standard was necessary because “the objects of impeachment were beyond ordinary criminal redress.”  Whereas “misdemeanors” were private wrongs punishable by the state, “high crimes and misdemeanors” were political offenses, against the state.  Consequently, according to Berger, high crimes and misdemeanors are not derived from ordinary criminal law, but are unique to the impeachment context.

Charles Black’s excellent Impeachment: A Handbook, attempts to clarify the standard a bit by further considering the relationship between criminal law and impeachable offenses.  Black relies upon the ejusdem generis canon to evaluate how “high crimes and misdemeanors” could be like treason and bribery, but ultimately Black appears skeptical of a definition of “high crimes and misdemeanors” that would require actual criminality (though he concedes that most actual presidential misdeeds would also be crimes).  He gives the following examples: a President announces that he will not appoint any Roman Catholic to any office.  This violates the clear command of Article VI of the Constitution, but is it criminal?  Or, suppose a President legally travels to a foreign country and conducts all business from there.  He wouldn’t be committing a crime, but surely his “gross and wanton neglect of duty,” as Black describes it, would be impeachable.  By the same token, merely committing a crime should not subject the President to impeachment, and Black gives a few examples on that ground, too.  In short, the President need not commit a defined crime to be impeached, but even if he does, mere criminality is not necessarily impeachable.

There is, then, substantial historical and scholarly authority for the proposition that a President can be impeached for abuses of office that do not formally constitute criminal offenses.

The problem for this President’s critics, of course, is that — for now, at least — neither criminal prosecution nor impeachment seems likely.

As to prosecution, again, there is the threshold problem of whether any crime has been committed under an applicable statute; the constitutional questions of whether he was simply exercising a constitutional function, and whether it is even permissible to indict or criminally try a sitting President; and even if so, the question of whether Trump’s own Justice Department would do so (which is precisely why the claims for a special counsel have been increasing).

That leaves impeachment, and only the House of Representatives can impeach the President.  Most Republicans in Congress have not exactly been profiles in courage when it comes to asserting their own prerogatives, defending the separation of powers, and resisting the charms of this President.  Efforts to distance themselves from the President have been tepid and ambiguous.  For now, congressional Republicans (generally) appear to be calculating one or both of the following: they need the President politically, and do not want to damage him; and/or, they fear the damage the President could do to them, with his Twitter account or otherwise.  The President, I suspect, knows this, which might explain his brazen, middle-finger-held-high recounting of his interactions with, and firing of, Comey.  He, too, calculates.

I do not contend here that President Trump has committed any offense, criminal or impeachable.  But that is clearly where the public conversation over Comey’s firing is, and where it will continue to go.  I thought some legal context might be helpful as we head — hopefully prudently — down each of those paths.  And I will hope to have more to say on each.  For now, I think much of how this conversation will proceed depends upon who the President selects to head the Bureau.

The Sessions controversy, or, why mens rea is so important in the criminal law

What had the potential to be a corner-turning week for the President was marred late Wednesday, and for the last few days, by revelations that Attorney General Jeff Sessions, while a Senator, met on two occasions with the Russian Ambassador during the 2016 election.  This was newsworthy because first, there is concern that perhaps Sessions had conversations about the campaign, the election, or a future Trump foreign policy; and second, Attorney General Sessions had claimed during his Senate testimony, and in written responses to questions, that he did not have any contact with Russian officials during the campaign.  While General Sessions has now recused himself from certain Russia-related investigations, some Democrats are calling for his resignation.  Others are saying he may have committed a crime.  Before Democrats savor the opportunity to chant “Lock Him Up!,” consider the applicable criminal laws more closely.

Is it a crime to give false or misleading testimony to a congressional committee?  Yes, and no.  Two statutes are relevant.  One is the general perjury statute, 18 U.S.C. 1621, which prohibits “willfully” giving a statement under oath that the witness “does not believe to be true.”  It is punishable by up to five years in prison.  The other statute is the false statements statute, 18 U.S.C. 1001.  Section 1001 provides that whoever, “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal Government “knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation” or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” commits an offense punishable by up to five years in prison.

So, to be precise, it is a crime to give a false statement to a congressional committee (whether or not under oath), but only where the statement is made knowingly and willfully.  Statements made with a faulty memory, or when the witness is confused about what is being asked, or that are simply mistaken, are not criminal.  See United States v. Dunnigan (with respect to perjury).  That is why the context and circumstances in which these statements are made matter a great deal, because they bear directly on Sessions’s state of mind and thus the mens rea elements of the statutes.

General Sessions appears now to be claiming that he believed that the questions he was asked referred only to whether he met with the Russian Ambassador about the campaign — that is, other than in his capacity as a Senator and a member of the Armed Services Committee.  General Sessions has claimed that he could not recall the substance of the conversations (strange, given the other details he seemed to remember; and if he cannot recall the substance of the conversation, how does he know he did not discuss the campaign or the election?).  Still, if his assertion now is made in good faith, that would likely be enough to negate the mens rea of the perjury and false statements statutes, meaning those provisions could not be proven beyond a reasonable doubt.

That is probably the likely result here.  It is not unusual for a witness to give statements before a congressional committee, or during a government investigation, that may be misleading or incomplete.  Giving the witness an opportunity to walk back, and explain, the statement more fully should usually be sufficient to satisfy the investigating entity in Congress, unless some intervening harm has been done by the earlier statement (and that does not appear to be the case here).    It is therefore exceedingly rare that someone will be prosecuted for lying to Congress.  That is typically less true when applying section 1001 in the context of a criminal investigation being conducted by a law enforcement agency, and section 1001 is often used as a basis for prosecution.  Moreover, as the Supreme Court held in Brogan v. United States, section 1001’s text does not leave room for an “exculpatory no.”  Still, federal prosecutors must consider the strength and plausibility of the defendant’s explanation of what he believed he was being asked, in light of all of the surrounding circumstances.  And in many cases — including this one — the explanation will not be an implausible one.

One may not accept General Sessions’ after-the-fact explanation as being truthful, but if it is, he is not guilty of a crime.  Of course, there are two very distinct possible explanations here: is it that, at the time, Senator Sessions did not remember his meetings with the Ambassador, or that he remembered but did not think those meetings were covered by the questions asked?  Either explanation could serve as a basis for avoiding criminal liability.  But note that those are very different explanations, and both cannot be true.

One other issue has arisen, though it would be relevant only if we are seriously talking about a federal prosecution here (which, again, I think is highly unlikely).  Would then-Senator Sessions be protected in committee by the Speech or Debate Clause of Article I, section 6 of the Constitution?  More on that in a subsequent post.

It seems unlikely that Sessions is at the heart of the Russia-contacts controversy.  Making him a target may be satisfying to those who did not want him to be AG in the first place, but it likely will not yield much.  A better rabbit hole to explore might be this: did anyone in the campaign or the Trump transition instruct, command, induce, or request that staff and officials deny contacts with the Russians if they are ever asked?  If so, the range of potential criminality with in the Administration could greatly expand.  Will an investigation pursue that question?