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Monday, April 29, 2019

The Special Counsel’s Decision Not To Prosecute Donald Trump Jr.

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime.  But the Mueller Report contains other decisions not to prosecute.  And I’d like to focus on one of them here.

Mueller decided not to prosecute a person who violated 18 U.S.C. 1030, a section of the Computer Fraud and Abuse Act.  Although the person’s name has been redacted for “personal privacy,” it seems obvious to me that the person in question is the President’s son, Donald Trump, Jr.  The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2).  The partially redacted declination decision appears at pages 179-80.

I assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice:

The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

It isn’t immediately clear to me why those fairness considerations would shield only a legal determination of guilt and not a recounting of underlying facts.  But that appears to be what happened here.  (Those who are interested in the law and norms surrounding decisions not to identify people who aren’t being charged might be interested in this essay by Ryan Goodman on unindicted coconspirators.)

I am less interested in the decision to redact than I am the decision not to prosecute.  Although much of the text is redacted, it appears that the decision not to bring charges against Don Jr. was not a decision about weak facts or uncertain law.  Instead it appears to have been a policy decision—specifically a decision that the crime was not serious enough to warrant prosecution.  Here is the key passage:

Applying the Principles of Federal Prosecution, however, the Office determined that prosecution of this potential violation was not warranted. Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful. Justice Manual 9-27.230.

I don’t disagree with the decision not to prosecute Don Jr.  The Computer Fraud and Abuse Act is, in my opinion, an overly broad statute.  That is to say, I believe that the text of the statute sweeps in far more conduct than it ought to.  In particular, it includes unauthorized password sharing.  So if, for example, I were to allow my friend to use my Netflix password so that she did not have to pay for her own, separate account, I have likely committed a crime under the Computer Fraud and Abuse Act.

The CFAA is far from the only overly broad criminal statute on the books.  There are plenty of overly broad federal and state crimes.  We allow our representatives to pass these laws because we rely on the good judgment of prosecutors not to bring charges in all cases that fit within the language of these statutes.  But there are many problems with this state of affairs.  For one thing, we rarely know what criteria prosecutors use in deciding when not to bring charges.  So long as we do not know what criteria prosecutors are using, we do not know the real content of the criminal law.  For another thing, there is no requirement that prosecutors adopt generally applicable criteria to decline prosecutions or that they use the same criteria in all cases.  To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases.  There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law.  But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

While I agree with the decision not to charge Don Jr., I wish that the report had redacted less of the analysis associated with the declination decision.  We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case.  What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution.  Such a statement could have potentially helped defendants who have been threatened with charges for similar conduct.  It also could have prompted a national conversation about whether we should rewrite the Computer Fraud and Abuse Act.

Posted by Carissa Byrne Hessick on April 29, 2019 at 08:10 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink

Comments

And just not to forget basic insights:

The general rule, dictates disclosure (transparency). And, the court can always review the records or information sought, and decide to what extent it does meet the burden ( that typically is on the agency to prove that records, documents sought, should be held confidential and so forth... ).

Here, very short ruling, and simply classic ( district court, northern district of California, dealing among others with exemption # 7 )here:

https://fas.org/sgp/jud/gordon.pdf

Thanks

Posted by: El roam | Apr 30, 2019 4:10:29 AM

Just clarification:

By " references " I mean also "foot notes ".

Thanks

Posted by: El roam | Apr 29, 2019 6:44:55 PM

Here a document of DOJ, bearing the title:

" Department of Justice Guide to the Freedom of Information Act "

Concerning " Exemption 7(E) ":

And there, Two relevant cases it seems are cited ( reference # 58, and : 47 ) and there ( # 47 ) it is cited that in Gordon v. FBI, I quote:

" holding that agency did not adequately explain how release of "the legal basis for detaining someone whose name appears on a watch list.....Could be used to circumvent agency regulations"

End of quotation:

So, if the agency can show the harm, concerning some techniques of investigation, surveillance and so forth, by disclosing it, then, information would be protected. Yet, if it is already known to the Public for example, would be disclosed. strictly, the effectiveness of the investigation is the issue ( Especially When the method employed is meant to operate clandestinely ).

But,I don't see how, revealing policy or guidelines for prosecuting or not and in what cases , would circumvent something.For the public must be aware to such policy, and it can't in noway it seems, undermine any investigation or prosecution, and, strictly, circumvent nothing. On the contrary.

To the document:

https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption7e_0.pdf

Thanks

Posted by: El roam | Apr 29, 2019 6:01:39 PM

Devin Watkins,

Please, if you are sure, let us know precisely about such exemption and cite it here well and analyze it please .Because, sec 522 dictates so, I quote relevant parts :

§ 552. Public information; agency rules, opinions, orders, records, and proceedings

(a) Each agency shall make available to the public information as follows:

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying for public inspection in an electronic format

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the public;

End of quotation :

So, all that, affects member or members of the public. And it is about instructions to staff ( when to prosecute, when not).

So, if you really master the issue, let us know precisely about such exemption, and cite it here. Because, here goes the exemption #7, I quote :

(b) This section does not apply to matters that are—[...]

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information

(A) could reasonably be expected to interfere with enforcement proceedings,

(B) would deprive a person of a right to a fair trial or an impartial adjudication,

(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(F) could reasonably be expected to endanger the life or physical safety of any individual;

So, no connection simply, on the contrary, if fair trial for example is prescribed, then surly not knowing the discretion for when dismissing one defendant, while not the other, on the same criminal charges or ground, and that, surly interferes with justice and fair trial ( generally speaking ). Surly also, hurts the public trust then.

So, let us know if you really know.

Thanks

Posted by: El roam | Apr 29, 2019 5:03:53 PM

You really think you would get this information from a FOIA request? They would claim Exemption 7 of the FOIA in a heartbeat over all of it.

But I agree this is an important issue, one that the modern legal community has not really dealt with in a sufficient way. There are substantial due process, rule of law, and equal protection issues screaming to be discussed, and yet what we get publicly is mostly silence from the federal officials in charge of making these decisions.

Posted by: Devin Watkins | Apr 29, 2019 4:18:27 PM

Important issue indeed.But such policy whether to prosecute or not, must be written.Must be official.Can't be based on capricious and arbitrary discretion of course.However, one may petition for such written protocols or rules(Freedom of information act)and ask for it.Further, in extreme cases,surly judicial review is warranted or available.

Just pay attention:

You mention that " the person's name has been redacted for " personal privacy ", and later, you mention his name as obvious and clear fact ( " While I agree with the decision not to charge Don Jr." ) With no reservation in fact.

Thanks

Posted by: El roam | Apr 29, 2019 8:52:26 AM

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