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?

Drug prosecutions in the Trump Administration

At one of this week’s White House press briefings, Sean Spicer spent considerable time (clearly more than he wished) discussing the President’s approach to federal drug policy.  This is one of the areas that I had previously flagged as representing a potentially meaningful departure from Obama Administration policy at the Justice Department.  Spicer’s briefing appeared to signal that this Administration would take a more aggressive approach to drug crime than its predecessor.  But that remains unclear.

Indeed, Spicer’s briefing may have created more new questions than it answered, which has become a rather predictable consequence of his briefings.  Notably, Spicer discussed an obscure appropriations rider (which I previously discussed here) that defunds federal prosecutions for drug offenses in states with liberal medicinal marijuana laws.  He distinguished — on no fewer than three occasions — recreational use from medicinal use, saying, with respect to federal drug enforcement relating to recreational use, “I do think you’ll see greater enforcement of it.”  Presumably, in context, he means greater enforcement of the Controlled Substances Act where the use is recreational.  Strangely, he subsequently tried to walk that statement back, instead referring the issue to the DOJ.

But the question now arises: will the Sessions DOJ more aggressively prosecute CSA offenses?  Will the Sessions DOJ reverse the Holder Memo from August 2013 that directed federal prosecutors not to allege drug quantities that trigger mandatory minimums if certain criteria are met?  That was a major pronouncement from Main Justice, and will have a meaningful effect on the way federal prosecutors treat drug crimes.  Yet the Administration has thus far been silent, and Spicer’s briefing did not help to clarify that matter.

Moreover, the rider to which he alluded does not cover every jurisdiction, because not every jurisdiction has liberal medical marijuana laws.  And it only applies where the defendant is in compliance with all of the State’s marijuana use laws.  This means that, potentially, a defendant who is in violation of the CSA, but who is using the marijuana for medicinal purposes in a state that is not covered by the rider (say, for example, West Virginia), could still be subject to prosecution.  Spicer did not seem to appreciate this scenario, and it raises the question: will the Administration prosecute those defendants?  If so, does that not obliterate the distinction between medicinal use and recreational use that Spicer had drawn?  Also, the rider is of limited duration; Congress could change it at any time.  What will the Administration’s position be on continuing the policy adopted by the rider?  Spicer did not say, but his distinction between recreational use and medicinal use would suggest that the Administration wants the rider to exist indefinitely.  Does Jeff Sessions?

Finally, Spicer was asked repeatedly about the Administration’s decision to reverse the Obama Administration’s interpretation of Title IX with respect to transgender bathroom access.  Spicer referred to this as a “states’ rights” issue (it is not, though that is a subject for another day), and said “we are a state’s rights party.”  I have said before that the use of the term “states’ rights” is constitutionally unsound, in my view, and that conservatives should not use it (“federalism” is a far better term, and is more accurate).  But if Spicer is correct that the Administration is committed to federalism, what, then, does that mean for federal drug law generally?  Of course, the CSA was upheld against a Commerce Clause challenge in Gonzales v. Raich, but two notable conservatives – Chief Justice Rehnquist and Justice Thomas – dissented in that case, as did Justice O’Connor (a notable defender of federalism and of state interests).  Why is drug law not a “states’ rights issue,” too?  By making the transgender bathroom issue one of federalism, Spicer has opened the door to questions about whether the Trump Administration is committed to federalism across subject matter, or whether its approach to Title IX is a kind of fair-weather federalism.

Sure, the appropriations rider is a federalism-protection measure.  But reference to the rider alone tells us nothing about the Administration’s view more broadly concerning the role of the federal government in making and enforcing criminal drug laws.  Perhaps more notably, Spicer’s responses raised this question: if federalism demands respecting the states that have chosen to make medicinal use legal, why does federalism not demand respecting those states that have chosen to make recreational use legal?  In other words, even if we grant the difference between recreational and medicinal use, does a true commitment to federalism require respect for state decisions as to both?

I’m no fan of more liberal drug laws.  There must be a robust drug policy regime that takes a variety of approaches — including, but not limited to, prosecutorial ones — to the range of drug problems in this country.  Spicer, of course, cannot be expected to answer at one briefing every question regarding the President’s views on these various problems.  But this Administration needs a coherent approach to both drug policy and constitutional federalism. And right now it has neither.

 

The constitutional education of America, and of its President

The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle.  The opinion is here.  This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case.  The court’s holding was, in my view, a dubious one, though not an unreasonable one.

Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people.  Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect.  We have had other such moments in our history.  But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.

Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic.  That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti.  It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power.  They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.

One hopes, too, that the President will savor the same opportunity.  His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office.  The one bright spot in this period was his nomination of Judge Gorsuch.  But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists.  The President himself must demonstrate that same fidelity.

Presidents can be critical of the courts.  The judiciary is not immune from criticism, nor should it be.  Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision.  FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs.  President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power.  President Obama criticized the Court’s Citizens United opinion during the State of the Union Address.  It is fair, and proper, that political leaders disagree with judges from time to time.  But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary.  This is, unfortunately, President Trump’s modus operandi.  He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits.  It is the last refuge of a man who is out of his element on substance.

So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate).  And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.

To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order.  This was admittedly a somewhat more complicated matter.  Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well).  And there is no question that the President had the power to relieve her of her duties.  But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences.  Imagine now how Attorney General Sessions must feel.  General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President.  Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.

To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter.  Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country.  But the problem goes even deeper.  The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim.  But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities.  This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.”  And it is becoming increasingly clear that the vetting of this Order was shoddy, at best.   Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?

Does all of this make the Trump Presidency hopeless?  It does not.  On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over.  Judge Gorsuch will likely make an outstanding Supreme Court Justice.  Tax reform is a real possibility.  And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.

But the President needs to right this ship in a hurry.  The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet.  He has created the impression that the law must bend to his will, lest a tantrum follow.  Of course, Americans should have seen some of this coming.  But the people, through their representatives in the Electoral College, elected him anyway.  Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Transgender killing results in federal hate crime conviction

Several of my recent posts have addressed issues related to hate crimes.  Obviously, the Roof conviction and upcoming federal death penalty hearing has made that case the leading hate crime story nationally of late.  But it seems helpful to note the latest hate crime story of interest, also from the deep South.  Like others, it raises important questions about the federal role in prosecuting violent crimes committed with a bias-motivation.  As the Justice Department announced here, a Mississippi man yesterday pleaded guilty to brutally killing his former romantic partner because she was transgender, and in order to avoid the wrath of a violent street gang.

According to the DOJ and the defendant’s statements at the plea hearing, Joshua Vallum had been dating Mercedes Williamson, then 17.  Vallum knew that Williamson was transgender but he kept this a secret from his family and friends.  Vallum was also a member of the Latin Kings.  The relationship ended and for about nine months, Vallum had no contact with Williamson.  Vallum learned, however, that one of his friends found out that Williamson was transgender.  Believing that he would be harmed if the Latin Kings also discovered that he had been dating a transgender person (the gang has strict rules about homosexuality, and Williamson’s birth gender was male), Vallum decided to kill Williamson.

After driving her from Alabama to Mississippi, he shocked her with a stun gun, and stabbed her repeatedly with a pocket knife.  Williamson was able to escape from the car where Vallum had stabbed her, but Vallum gave chase and stabbed her again in the head (he believed he had “hit brain”).  Although Williamson was still able to stumble into some woods, Vallum again caught up to her and hit her repeatedly with a hammer, killing her.

This case gained special national prominence after Caitlyn Jenner remembered Williamson during Jenner’s 2015 speech at the ESPY awards.

Vallum had already been convicted in Mississippi state court of murder and received a life sentence.  But, as has been true in other cases, the Feds believed that it was necessary to pursue a federal prosecution because Mississippi does not have a hate crimes statute for which gender identity is a protected category.  Thus, in the language of both the relevant statute (the Shepard-Byrd Act, 18 U.S.C. 249) and the DOJ’s Petite Policy, the state prosecution left the specific federal interest “unvindicated.”  It is an open question whether the Trump Administration will take a similar view of how federal interests become vindicated by state prosecutions.

Vallum now faces another life sentence, this time in the federal system.  As I have discussed elsewhere, there is no death penalty under the Shepard-Byrd Act, though I believe this case and others demonstrate why there ought to at least be that option for federal juries in section 249 cases involving brutal killings like this one.

But that raises another question: why not also charge Vallum with murder in aid of racketeering (18 U.S.C. 1959)?  The VICAR statute reaches murder committed for the purpose of “maintaining or increasing position” in a racketeering enterprise.  If the Government’s theory is that Vallum killed Williamson not simply to avoid harm by the Latin Kings (surely a “racketeering enterprise” as defined in VICAR), but in order to remain a member of the Latin Kings, then this would seem to provide sufficient evidence to charge the VICAR offense.  That is notable because a killing under VICAR – unlike the Shepard-Byrd Act – does permit the death penalty.

I have not seen the Vallum indictment.  Perhaps it does contain a VICAR charge, and that charge was dismissed as part of the plea agreement to the hate crime.  If it was not included, perhaps the theory would be that Vallum committed the killing not on behalf of the Latin Kings, or because of a desire to maintain his position in the Latin Kings, but only because of Williamson’s gender identity and his fear of the gang’s enforcement.  But it seems hard to neatly separate his killing of Williamson on account of her gender identity from his interest in maintaining a place within the gang – arguably, he did one to preserve the other.  And that is precisely what VICAR forbids.

Finally, because this prosecution was based on section 249(a)(2), which is justified only under the Commerce Clause, there is a reasonable question as to whether the federal government properly had jurisdiction in the case.  But the statute easily answers that problem, at least as a matter of statutory application.  It specifically permits federal jurisdiction where there was travel across state lines, see 18 U.S.C. 249(a)(2)(B)(i)(I), and that was the case here.  Perhaps Vallum could have argued that the travel from Alabama to Mississippi was too attenuated from the killing to be justified under the Commerce Clause, but I doubt such an argument would go very far.  The statute also permits federal jurisdiction where the defendant uses a dangerous weapon or other weapon that has traveled in interstate commerce, or where the defendant used a “channel, facility, or instrumentality” of commerce “in connection with” the prohibited conduct, or where the prohibited conduct otherwise affects commerce.  See 18 U.S.C. 249(a)(2)(B)(ii)-(iv).

Still, in a different case, depending upon the facts, it could make sense to question whether some of these jurisdictional elements are enough to satisfy the Commerce Clause.  Watch for a hate crime case presenting a viable challenge to the jurisdictional element and the scope of congressional power.

Hate crime stats for 2015

In light of the start of the Dylann Roof trial in South Carolina, I thought this would be a good time to highlight the hate crime statistics from 2015, which are now up on the DOJ’s website here.

These are the stats from across jurisdictions, and are not unique to the distinctive federal statutes that cover bias-motivated crimes (e.g., 18 U.S.C. sections 245, 249).  Rather, the reporting program uses incidents in which there is “sufficient evidence” that would lead a reasonable and prudent person to conclude that the offender’s actions where motivated “in whole or in part” by bias against the victim based on race, gender, gender identity, religion, disability, sexual orientation, or ethnicity.  The reports include crimes against the person, against property, and against society, according to the FBI’s explanation of the methodology.  Additional explanations about methodology are here.

A few numbers are especially noteworthy.  The number of reported incidents was 5,850, with 7,173 victims. Of those, 3,310 were based on bias against race/ethnicity, 1,244 were based on religious bias, 1,053 based on sexual orientation, 74 based on disability, 23 based on gender, and 114 based on gender identity.  There were 32 incidents involving multiple forms of bias.  Of those incidents based on race, a majority were committed based on bias against African-Americans (1,745).  Anti-White/Caucasian incidents were reported at 613.  Of those based on religion, a majority were Anti-Jewish (664); 257 were Anti-Muslim; and 53 against Catholics, 37 against Protestants, 8 against Mormons.  In the gender identity category, 73 incidents were based on bias against transgendered persons, while 41 were based on gender non-conformity.

Incidents were far more likely to be committed in a home or on a street, road, or sidewalk (2,861).  Still, a substantial percentage were committed in a parking lot or garage (328) or a place of worship (259).  An especially disturbing stat shows that 184 were committed at an elementary or secondary school.

Among offenses (6,885), most were instances of intimidation (1,853), simple assault (1,696), and destruction, damage, or vandalism to property (1,698).  There were 882 aggravated assaults reported, 13 rapes (including both the traditional definition of rape and a revised modern definition), and 18 reports for murder or non-negligent manslaughter.  Of those 18 criminal homicides, 10 were based on bias against African-Americans (9 of which were reported by South Carolina, so, attributable to the Roof case), 4 were based on Anti-Islamic bias (the only category of bias against religion that fell into the criminal homicide category), one was based on anti-gay bias, and one was based on anti-transgender bias.

Among participating jurisdictions, California reported more offenses (1,017) than any other state.  New York reported 515, Massachusetts 483, Ohio 470, Michigan 373, and New Jersey 349.

There is a substantial amount of data to be found in these reports, some of it quite interesting and helpful.  Of course, it cannot account for incidents that went unreported, so in that sense (as well as others) it is imperfect.  And it does not break down the data based on specific hate crime statutes across the country (so, for example, are reports higher in places that have hate crime statutes like those at the federal level?).  But the information remains beneficial.  I will also be very interested in seeing the data from 2016.

 

Hate crime prosecutions in the new administration

A story out of West Virginia this past week reminded me of an issue that has arisen with respect to the Trump Justice Department, and, in particular, the President-Elect-to-be’s choice for Attorney General.  According to local and national news reports, a 62-year-old man has been accused of murder under West Virginia law, after he shot and killed a 15-year-old boy.  Police say that William Pulliam, who is white, shot James Means, who is African-American, after the two bumped into each other outside of a store near Charleston. Reports say that Pulliam shot Means, then had dinner and visited a friend’s home, where a firearm was found.  Pulliam claims the killing was self-defense.  Now, the United States Attorneys Office confirms it is involved in the case, investigating whether the killing might be a federal hate crime.

There is consternation among many critics of both Trump and Senator Jeff Sessions, who Trump has tapped for AG.  One of the major criticisms of a Sessions-led Justice Department, it is said, is that the DOJ will not make civil rights cases a priority.  That, presumably, could include weak enforcement of the federal hate crimes law. The Pulliam case could be an early test of this theory for the Trump DOJ.

Still, I wonder whether this particular criticism is overstated.  While I think it likely that the new administration’s Civil Rights Division will take a much different view of some civil rights matters (e.g., voting) than the current Civil Rights Division, it is also likely that a Trump Justice Department will make violent crime an enforcement priority.  Federal hate crimes under the Hate Crime Prevention Act are, by definition, violent crimes.  The Shepard-Byrd Act requires that the defendant either willfully cause bodily injury or – through use of fire, firearm, dangerous weapon, explosive or incendiary device – attempt to cause bodily injury. 18 U.S.C. 249.  Because of the double mens rea (that the act be done willfully and that it be done because of certain kinds of animus), the defendant’s state of mind is often the contested issue in the case.  I suspect that will be the issue in the Pulliam case, as well, as there seems to be no question that he used a firearm to kill Means (though there remains the issue of justification).

If the Sessions DOJ makes violent crime an enforcement priority (as I suspect it will, and should), then there is little reason to think that it will categorically refuse to enforce the Shepard-Byrd hate crimes law.  Of course, there remains the question of whether the DOJ should prosecute in cases where the state is also prosecuting, or whether the alleged act involves the kind of animus required by the statute, but those are already barriers to enforcement now.  Neither is a sticking point unique to the Trump Administration.

It is also worth noting that during the debate on the hate crimes bill, Senator Sessions proposed an amendment that would have allowed the death penalty for certain hate crimes resulting in the death of the victim.  Though some described the Sessions Amendment as a poison pill, there were – and remain – considerable arguments for making a hate crime that results in death a capital offense.  Several other criminal statutes relating to civil rights already provide for capital punishment.

There has been an understandable sensitivity to bigotry in the wake of the presidential campaign and the election.  But not every act of bigotry is a federal hate crime, detestable as the act may be.  Merely shouting offensive words, for example, is not a violation of section 249.  The statute requires a highly culpable mental state, combined with personal animus, combined with the infliction or attempted infliction of bodily injury.  And until Congress broadens the law, every Administration – Republican or Democrat – must wrestle with the limits on its enforcement.  Of course, hate crimes may also be prosecuted under Section 245, but again, there are limits: that statute’s narrow hate crime provisions are limited to injury, intimidation, or interference based only on race, color, religion, or national origin, and only with respect to certain federally protected activities.

Still, the new Trump Justice Department could help allay some of the public’s concerns if it demonstrates a proper appreciation for the virtues of the Shepard-Byrd Act, the federally protected activities statute, and the idea of treating animus-based violence as a particularly insidious form of criminality.  I am hopeful that an Attorney General Sessions and his Civil Rights Division will enforce it, sensibly, as part of a wider policy that both attacks violent crime and sustains the Department’s tradition of defending civil rights.

On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.