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Prosecutorial Discretion and the Indictment of Donald Trump

After many days of leaks from the grand jury and anxious speculation, the news broke last night that a Manhattan grand jury indicted Donald Trump.  The indictment remains sealed, and so we do not yet know the precise charges, but the many leaks from the grand jury indicate that the case revolves around payments to Stormy Daniels.

News of the indictment has sparked an outpouring of intense and diametrically different reactions.  On the left, people are delighted that Trump will face criminal charges; they think Trump has been engaged in years of criminal misconduct, and they see this as a moment of reckoning.  On the right, people are outraged by the charges, insisting that they are politically motivated and legally suspect.  Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion.  The delight from the left rests on the premise that law enforcement had for years looked the other way, and failed to hold Trump (like other powerful people) accountable.  The outrage on the right is based on the assumption that the Democratic Manhattan DA targeted Trump because he is a popular Republican politician.

I don’t want to wade into the merits and demerits of these opposing views.  Instead, I want to point out that, to the extent that they talk about prosecutorial discretion, both are likely correct.  People on the left are correct that powerful people often do not face consequences for acting illegally.  Prosecutors are loathe to bring charges against wealthy and powerful people because those people have the resources to fight back and because the prosecutor will look bad if the case falls apart.  Examples of such cases publicly falling apart abound—from Cy Vance’s failed prosecution of DSK, to Mike Nifong’s pursuit of the Duke Lacrosse team, and Marilyn Mosby’s repeated failed prosecutions of Baltimore police officers in the death of Freddie Gray.  Examples of prosecutors deciding that the hassle isn’t worth it are more difficult to come by because the public usually doesn’t find out about cases that aren’t brought.  But Alex Acosta’s decision not to bring any federal charges against Jeffrey Epstein gave us a rare public glimpse into that dynamic.

People on the right are correct that prosecutors often make decisions for political reasons.  The failed cases above were likely brought with the expectation that a successful prosecution would be helpful in the DA’s next election.  But even when local prosecutors aren’t thinking about their own political future, they will pursue cases to “send a message” to the public.  Thus, if you are a celebrity whose criminal conduct was very public, you may find yourself treated worse than the average defendant so that the prosecutor can appear tough on crime.  Just ask Martha Stewart and Plaxico Burress. 

As the above paragraphs explain, prosecutorial discretion—like all forms of discretion—inexorably leads to similarly situated people being treated differently.  Although equal treatment is the ideal, our legal system often relies on discretion because it is too difficult to specify ex ante what all of the relevant considerations ought to be.  This is one reason that the Supreme Court has given in stating that judicial review of prosecutors’ charging discretion is inappropriate. 

Because we cannot ensure equal treatment through ex ante rules, one might think that we could attempt to do so ex post.  This is what Jim Comey sought to do when he explained why criminal charges against Hillary Clinton were inappropriate.  He explained that DOJ had combed through the previous cases involving mishandling of classified information, identified the enforcement criteria that were used in those cases, confirmed that those criteria were not present in Clinton’s case, and thus determined charges were not warranted.  (If I recall correctly, the enforcement criteria were large quantities of material and/or dishonesty or obstruction on the part of the defendant.  Fun fact:  While neither of those criteria were present for Clinton, both are present in the Mar-a-Lago documents investigation against Trump.)

It might be possible to conduct the same sort of ex post inquiry in the Manhattan case against Trump.  The folks at Just Security have pulled together a document with a helpful spreadsheet of business records cases, which could allow readers to compare the Trump case to previous cases that have been pursued.  Unfortunately, documents like this are limited—they identify only cases that were pursued; they do not and cannot identify similar cases that the Manhattan DA’s office decided not to pursue.

Ultimately, that illustrates why modern prosecutorial discretion sits uneasily with our commitment to the principle of equal treatment under the law.  As a country, we have enacted broadly written criminal statutes, which delegate enormous enforcement authority to prosecutors.  And we have not created any mechanisms to provide transparency into how that authority is exercised.  We know that prosecutors routinely decline to bring charges when they have probable cause that a crime has been committed, and yet we do not know much of anything about how they use that power.

The indictment of a former president (and current candidate for the office) was always going to be a political firestorm.  But our failure to grapple with the black box of prosecutorial discretion only adds fuel to the fire.

Presidents and Prosecutorial Discretion

News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week.  Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself.  Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.

Much of the commentary surrounding the search has focused on whether the search was justified.  The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president. 

At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago.  Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.

As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.

First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like.  Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity.  But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions.  A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.

How could we go about articulating a “heightened scrutiny” standard?  For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.

The idea that DOJ should have a larger amount of evidence than what would amount to probable cause before seeking a search warrant of a former president doesn’t seem like a particularly radical argument to me.  Probable cause is not a difficult threshold to meet.  There is reason to believe that prosecutors and law enforcement already tend to require more than just probable cause in order to search or arrest a high-profile subject; instead, they want overwhelming evidence that a crime was committed or that evidence of that crime is likely to be found.  To be clear, law enforcement likely use this heightened evidentiary standard in cases involving high-profile subjects because they know such cases will garner more public attention, and they don’t want a case to fall apart when the public is paying attention. 

For what it is worth, I don't think that those calling for a heightened standard are saying that a higher evidentiary threshold is needed because the news accounts suggest that the FBI had ample evidence that they would find the documents they sought in the search warrant, and the inventory from the search indicates that they did find such documents.

So that means the call for heightened scrutiny is likely an argument that not all crimes should give rise to an investigation or a search of a former president.  The idea that someone should essentially be immune when it comes to some crimes may seem controversial—at least until people are made aware of how much relatively innocuous behavior is actually criminal.  Congress and state legislatures pass dozens of new criminal laws every year, some of which contain sweeping language.  (If you are curious about how silly some of those laws are, you should check out Crime a Day.)  To the extent that the “heightened scrutiny” argument is merely an objection to overcriminalization in specific circumstances, then it seems unremarkable.  But again, the argument needs to be spelled out in more detail because specifying which crimes should remain unenforced is necessary to assess the argument. Should former presidents be exempt from prosecutions for mishandling classified information?  Tax fraud?  Burglary?  Shooting someone on Fifth Avenue?

The biggest flaw with both the type of crime argument and the amount of evidence argument is that they don't just apply to former presidents:  Why should these heightened standards apply only to Donald Trump and not the rest of us?  Probable cause is an incredibly low standard to meet. So why is that a good enough standard for searching or arresting ordinary citizens?  And why isn’t the overcriminalization critique an argument for stopping all prosecutions of such crimes, not just prosecutions of those who were elected to national office?

Some of the commentators arguing for heightened scrutiny have suggested that their argument is based on a perceived danger that former presidents will be targeted for illegitimate reasons—specifically, they will be targeted in order to help the political fortunes of those who are currently in office.  But personal and political grievances are not limited to former presidents; they exist in communities across the country.  For example, when I was doing research for my book on plea bargaining, I reached out to the lawyers of a man who had been pressured into pleading guilty for a crime he hadn’t committed.  The lawyers told me that their client was scared to talk to me:  Even though he had been exonerated and his conviction reversed, local police had made it known that they still thought him guilty, and so the man was worried about doing anything that would draw their attention and encourage them to use their power to harass him.

You would think that judges could stop police and prosecutors who use silly laws or low evidentiary threshholds to harass people.  But when faced with evidence that law enforcement used their powers to arrest and search as a pretext, or have used the powers to punish individuals for extralegal reasons (like exercising their right to free speech), courts have refused to intervene.  But those pushing for heightened scrutiny either don’t know or don’t care that overcriminalization and weak evidentiary thresholds allow abuse of ordinary citizens.  They only seem concerned that people who have held positions of immense power are shielded from possible abuse of the criminal justice system.

Of course, the people who are arguing for heightened scrutiny don’t frame their argument in those normative terms.  Indeed, some don’t even say that former presidents should have additional protection.  Instead, they suggest that such protections are necessary for political reasons—e.g., that without heightened standards the political allies of former president Trump will see DOJ's actions as illegitimate political persecution, and they may even resort to violence.

I’m not sure that it is wrong to say that public officials must think about politics when it comes to criminal investigations and prosecutions.  After all, our criminal justice system gives enormous amounts of discretion to law enforcement and to prosecutors, and it largely regulates that discretion through direct elections or political appointments and removals.  In other words, despite repeated claims to the contrary, investigations and prosecutions are—on some fundamental level—political.

But I don’t think that the people who are making the heightened scrutiny argument fully appreciate the implications of adopting an explicitly political approach to investigations and prosecutions.  Specifically, I don’t think they appreciate that this principle—that political considerations should drive the exercise of criminal justice powers—also legitimates efforts by progressive prosecutors to stop enforcing low-level crimes, to stop cycling people of color and people from low-income communities through jails and prisons, and to refuse to enforce highly-politicized offenses such as abortion-related laws.  The prosecutors who have pursued such policies have done so with significant political support from within their communities, but with great pushback from outside of those communities.  For example, earlier this month, Ron DeSantis removed a local prosecutor from office on the basis of statements that the prosecutor wouldn’t prosecute people for abortion-related crimes.  DeSantis claims that these statements are evidence of neglect of duty and malfeasance.  Would an explicit policy of eschewing criminal investigations and prosecutions of former presidents also be neglect of duty or malfeasance?  And if not, why not?

I also don’t think it is a good idea for those arguing in favor of heightened scrutiny to focus on the violence that President Trump’s followers might wreak on this country.  For one thing, I think that some Trump supporters will resort to violence no matter what happens (e.g., if their candidate loses a fair election).  In addition, I think that argument tells people that being seen as unpredictably violent is the way to get preferential treatment from law enforcement. Think, for example, about the violence and property damage that occurred during the racial justice protests of 2020.  The logical conclusion of the heightened scrutiny argument is that, if there is enough violence of that sort, then police and prosecutors will have to change their practices and stop relying on low evidentiary thresholds and bloated criminal codes when policing poor communities of color.  Maybe the people who are arguing for a heightened standard for former presidents would also endorse a public and explicit change to what crimes are enforced and the evidentiary thresholds being used in poor communities out of fear that more violence or property damage could occur—but I’d like to see them say so if it is true.

The truth is, the search at Mar-a-Lago has forced people who usually think about politics and presidential power to grapple with the fact that we don’t require much from law enforcement before they can search and arrest members of the public.  The former is the stuff of nationally syndicated pundits and constitutional law professors; the latter is the territory of criminal justice practitioners, advocates, and crim law professors.  Now that the country is paying attention to how much power and discretion is given to officials in the criminal justice system, perhaps it is time to address that enormous and largely unchecked power on its own terms rather than just worrying about whether that power will be directed at a former president.

Welcoming the Transnational Litigation Blog

My UNC colleague, John Coyle, along with Ingrid Wuerth (Vanderbilt), William Dodge (UC-Davis), and Maggie Gardner (Cornell), have recently launched the Transnational Litigation Blog.

The editors have been very active, posting on topics including the legal challenges presented by a possible Russian bond default, evaluating whether the U.S. should seize Afghan central bank assets to pay judgments against the Taliban, weighing the foreign relations aspects of contemporary climate change litigation, and recounting the disquieting origins of the modern doctrine of forum non conveniens. In addition to traditional blog posts, TLB includes pages that explain various topics, such as forum selection clauses, choice of law clauses, and the presumption against extraterritoriality.

For those of you who are interested in transnational topics--or for those of you who just can't get enough legal blog content--I hope you check it out!

Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges.

These are two incredibly important questions that arise because of how the Supreme Court decided United States v. Booker.  Previous cases had said that mandatory sentencing systems violate the Sixth Amendment if they require judges to make factual findings before increasing a sentence.  The Federal Sentencing Guidelines required such factual findings, and so the Booker Court held that they were unconstitutional.  But then something unusual happened—although she formed part of the 5-4 majority that found the Guidelines unconstitutional, Justice Ginsburg joined the four dissenting Justices who then fashioned a strange remedy.  Rather than saying that mandatory sentencing facts have to be proven to a jury beyond a reasonable doubt, the remedial majority said that the Guidelines would no longer be mandatory, they would instead be “advisory.”

Since Booker was decided in 2005, the Supreme Court has heard a whole bunch of cases that seek to clarify this remedy.  It is clear that judges still have to find facts and calculate a sentence under the Federal Sentencing Guidelines.  It is also clear that judges have at least some authority to give a non-Guidelines sentences.  And it is clear that appellate courts are supposed to review sentences to make sure that they are both procedurally and substantively reasonable.  But it is entirely unclear how much authority district court judges have to sentence outside of the Guidelines, and it is also unclear what the appellate review of those non-Guidelines sentences is supposed to look like.

Just last week, the North Carolina Law Review hosted a symposium on the Supreme Court’s Sixth Amendment sentencing doctrine.  The first of the Court’s Sixth Amendment sentencing cases, Apprendi v. New Jersey, was decided in the year 2000, and so the symposium marked the 20^th anniversary of the doctrine.  We had an amazing group of speakers at the symposium—Judge Stephanos Bibas, Doug Berman, Will Berry, Frank Bowman, Judge Nancy Gertner, Nancy King, Susan Klein, Kate Stith, and yours truly.  The law review will be publishing papers from the symposium.

Coincidentally, my paper (which is not quite in shape to be shared right now!) addresses both of the questions that are before the Supreme Court in Demma.  I argue that two Supreme Court cases—Blakely v. Washington and Cunningham v. California—require allowing district court judges to impose sentences based only on policy disagreements.  Blakely contained the following explanation of its holding:

“Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” 

If district court judges may not base their sentences on policy reasons alone, then they will have to base sentencing decisions on facts.  The Blakely Court told us that those facts, if necessary, have to be submitted to a jury.  If judges have to point to particular facts or circumstances in a case that justify a non-Guidelines sentence, rather than being able to simply articulate a policy disagreement, then the Supreme Court will have to overrule Blakely.

The appellate review question arises from some contradictory language in Gall v. United States.  Gall instructed the courts of appeals to “take into account the totality of the circumstances” when reviewing sentencing decisions, and it also suggested that this review should be conducted no differently for sentences inside the Guidelines range and outside of the range.   But this even-handed language was undercut elsewhere in the opinion.  In stating that appellate courts should consider the totality of the circumstances, the Gall Court mentioned only a single circumstance—“the extent of any variance from the Guidelines range.”   It also said “it uncontroversial that a major departure should be supported by a more significant justification than a minor one.”

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision—the decision to allow different legal standards for sentencing—troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits. 

For example, according to 2018 U.S. Sentencing Commission data, judges in the Fifth Circuit follow the Guidelines when imposing sentence 84.3% of the time.  In contrast, judges in the Second circuit follow the Guidelines only 55.3% of the time.  It should come as no surprise that these two circuits take different legal approaches to the questions presented in the Demma petition.

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

How to Cover Protests and Crime (*slightly updated)

I just finished reading this thought-provoking article from Arc Digital about media coverage of protests and political implications.  It is a good reminder that media have to make substantive decisions about which stories to cover.   But it also is basically a microcosm of a lot of coverage that I've seen about how the lawlessness at protests and crime more generally is likely to play out in the presidential election.

Implicit (and sometime explicit) in this article is the idea that, although the political arguments about crime and the protests that are being leveled against the Biden/Harris ticket are wrong a a matter of fact and as a matter of logic, the arguments might still succeed.  The author notes that conservative media outlets and prominent Republicans keep saying that Biden and Harris haven't condemned looting and violence at the protests.  But of course they both have.  The author also seems to acknowledge that it's illogical to blame Joe Biden for things that are happening while Trump is president or to say that crime will get worse if Biden is elected.  Even if we think presidents are responsible for crime--which is a silly thing to assume--crime rates dropped when Biden was vice president, and similar protests and violence in Ferguson were handled much more effectively when Obama was president.  Yet this author is quick to tell Biden and Harris that they need to do more to reassure voters that they don't support violence, and that they have to be careful not to be more forceful in condemning vigilantes than antifa because that might give voters the wrong impression.

In short, the article adds to the pile of commentary that seems to assume the current violence in American cities will hurt Democrats, and thus focuses on how the Biden/Harris response could be *better* while largely ignoring that the Trump/Pence response has been pretty awful. 

That same double standard appears in the discussion of media coverage.  The article notes how the mainstream media has ignored some stories that gained traction in the conservative media.  And it argues that these omissions could make people think that Democrats support rioting.  But there’s no similar critique of the conservative media.  There is no detailed catalogue of what stories didn’t get coverage on Fox News or in the National Review.  There’s no concern about stories from these outlets that seem to support vigilantism or turn a blind eye to police violence.  Nor is there an explanation about why alienating voters is only something for mainstream media or left-leaning outlets to worry about.

Don't get me wrong.  I think that the concern and the critique offered in this article are based in good faith.  The author seems to support Biden/Harris and I suspect she wrote this story because she is worried that they might lose.  But I worry about the cumulative effect of stories such as this on criminal justice politics in this country—stories that focus on whether law & order issues will hurt Democrats and that assume they will help Republicans.  This country has only recently started to recover from decades of the two parties trying to out-do each other as tough on crime.  Framing "law & order" as something that Democrats always need to be afraid of could undermine the small reforms that have been made.

My biggest criticism of this reporting and lots of other commentary that I’ve seen is that it doesn’t attempt to put questions about crime and disorder at the protests into a larger context that includes actual empirical evidence about what’s happening (rather than just anecdotes).  For example, I’ve seen dozens of commenters talk about the “sense” or “perception” that the protests are not peaceful, but are instead riots filled with lawlessness and violence.  Isn’t that something that could actually be tested?  How many protests do we see across the country every day where there is no looting or burning of buildings?  A political commentor who is tempted to write another "crime is bad for Biden/Harris" story could do some independent research to provide additional factual context to whatever "there's a sense" conjecture that she wants to write.

For example, I haven't seen very much in-depth reporting about what arrests police are making at these protests.  A quick glance at the Portland Sheriff’s booking database showed me that law enforcement in Portland are still arresting a significant number of people for not following police orders.  That information about arrests in Portland is especially newsworthy given the wide spread coverage about the Portland DA refusing to prosecute people arrested at protests unless they were looting or engaged in violent behavior.  It’s fair to ask why the police are continuing to arrest these people who are literally protesting police aggression.  Similarly, a sheriff from just outside Portland* recently released a statement saying that judges are contributing to the lawlessness in Portland by releasing protestors on their own recognizance, claiming that police are arresting the same people over and over again.  This statement is gaining tons of traction on Twitter, but local reporting makes clear that the statement is factually incorrect:  "Court and jail records show that few people have been arrested multiple times at protests and that the majority of arrests have been for non-violent crimes."**

Finally, it would be nice if critiques of media coverage about crime during these protests seemed to have some appreciation about the ordinary problems associated with media coverage of crime—the disproportionate coverage of serious crime, the uncritical repetition of law enforcement statements, the effects of the availability heuristic on the public.  This article, for example, chides the media for not giving complete accounts of the criminal history of Jacob Blake.  Is that really what we want the media to do?  Do we really think that the fact a person has been accused of a crime makes it more likely that they were violent towards the police? And if so, where is the outrage that the media doesn’t have access to the disciplinary records of the officer who shot Blake?  Or do we assume prior bad acts are only relevant for people who police are shooting and not for the police themselves.

In any event, the article is worth reading because it does a good job highlighting questions about content decisions that those in the media have to make.  But this author had to make similar decisions for this very article, and it’s far from clear that her decisions are more evenhanded or less biased than the decisions she is criticizing.

* Previous version of this post mistakenly said that it was the sheriff of the country that includes Portland.

** This paragraph has been updated to include the information from local media contradicting the sheriff's statement

CrimFest in the Time of Corona

For obvious reasons, CrimFest--the annual workshop and gathering of criminal law professors--will not be held in person this summer.

Instead, of trying to move a 150+ person conference online, we are going to facilitate a semi-structured paper swap.  While the swap is obviously not a substitute for the conference itself, my hope is that it will help provide at least some of the benefits of CrimFest --- namely,  giving us a mid-summer us a writing deadline, letting us learn about what others are writing, and allowing us to get feedback from others who are writing and researching similar topics. 

Everyone who signs up for the swap will be expected to send their draft to others no later than July 1; and they will also be expected to return comments to others no later than July 15.  People can swap with as many or as few people as they'd like.  And the two week turnaround for comments should be flexible enough to allow all of us to balance our other responsibilities. 

If you are interested in participating, please email me at [email protected] no later than April 24.  Please put "CrimFest Swap" in the subject line of your email, and I will reply with more details.

Notice, Vagueness, and Trump’s Anti-Impeachment Argument

On Monday, the President’s lawyers filed a memorandum with the Senate that lays out his response to the House’s impeachment case. One argument in the memo stood out to me—the idea that President Trump cannot be impeached because he did not violate a specific criminal law.  The President’s lawyers are making this argument in response to the first article of impeachment—the one that alleges an abuse of power. 

This argument has gotten a lot of attention because Alan Dershowitz, who recently joined the President’s legal team, has argued that, as a historical matter, impeachment and removal are only constitutionally permitted if Congress proves the President committed a crime.  There is ample evidence that contradicts Dershowitz’s historical argument—evidence that constitutional experts across the country have been quick to identify. 

Importantly, the President’s lawyers have framed the argument in terms that are not purely historical.  They have also argued that, as a substantive legal matter, a President may only be impeached and removed for conduct that is clearly forbidden by law.  That substantive argument is not receiving the same level of attention as Dershowitz’s historical argument. (Though I do recommend this great essay from Ilya Somin over at the Volokh Conspiracy.)  Because the substantive argument is intuitively appealing, I think that it is important to highlight what is wrong with it.

The President’s substantive argument, in a nutshell, is that he cannot be impeached for abuse of power because there is no clear, legal definition of “abuse of power.”  In the absence of a clear definition, the argument goes, it would be unfair to impeach the President because, at the time he acted, President Trump did not know that conduct was forbidden.  It would also give Congress too much power because Congress could use the nebulous charge of “abuse of power” to impeach and remove future presidents based on legitimate policy disagreements.  If these sound familiar to you, it may be because they are similar to an argument that Josh Blackman made several weeks ago.

These may also seem like familiar arguments because they are based on due process principles.  In particular, they rely on arguments that justify the rule of lenity and the void-for-vagueness doctrine—due process limitations that many of us learned about in our first year criminal law classes.  Personally, I love teaching these topics to my students, and I have also used those principles in my scholarship to repeatedly argue for more narrow and more specific criminal laws.  But here is the rub:  I make these arguments because this is not the current law in this country.  We routinely punish people without making clear beforehand what people can and cannot do.  We have done so since this country was founded nearly 250 years ago.  We do this despite the fact that it isn’t fair to the people we punish.  And we do it despite the fact that it gives police and prosecutors enormous amounts of power.

For example, we routinely criminalize certain conduct only if it is “unreasonable.”  That term appears in literally hundreds of criminal laws in all fifty states.  What distinguishes reasonable conduct from unreasonable conduct?  The answer to that question probably changes from person to person.  And so criminal laws that forbid “unreasonable” conduct require people to guess whether prosecutors or jurors will think that their actions were reasonable or unreasonable.  Yet, the Supreme Court confirmed as recently as 2015 that those laws are constitutional.  We’ve used that same malleable standard for literally centuries.  As Supreme Court Justice Oliver Wendell Holmes once said: “[T]he  law  is  full  of  instances  where  a  man’s  fate  depends  on  his estimating  rightly,  that  is,  as  the  jury  subsequently  estimates  it,  some matter of degree.  If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.”

To be sure, the Supreme Court has, on a small number of occasions, said that a criminal law can be so vague that it violates the Constitution’s guarantee of due process.  But those decisions have either involved laws that appeared to impinge on other important constitutional rights, like the right to free speech, or they have come in the wake of repeated unsuccessful attempts by courts to make sense of confusing or conflicting statutory language. 

But “abuse of power” doesn’t fit into either of those categories.  Instead, it looks quite similar to other phrases that the Court has allowed stand, relying on courts to give meaning to them over time.  The Sherman Act’s prohibition on any “contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce” provides an example.  The cases decided since the passage of the statute have confirmed that Congress essentially delegated to the federal courts the task of creating a criminal common law of antitrust.  When it comes to “abuse of power,” it isn’t as though there is no guidance about what the phrase means.  As Harvard Law Professor Niko Bowie recently pointed out, abuse of power was considered a common law crime in this country, which means that there are cases and treatises that give real content to the concept.  It is precisely this sort of case law that has insulated similar legal phrases against vagueness attacks in the past.

President Trump’s own administration houses some of the strongest advocates for imposing punishment for violations of vague laws. Lawyers in Trump’s Justice Department have argued that statutes with vague language should be enforced against individual Americans.  This doesn’t really distinguish President Trump from the presidents that proceeded him—the Department of Justice has historically defended federal laws against vagueness challenges.  But it does seem ironic that Trump’s lawyers would claim constitutional protections in an impeachment trial while his administration works to deny those same protections to people in criminal trials. 

To the extent that people want to see more robust protections against imprecise criminal laws—and I assure you that I do—it makes no sense that we would first adopt those protections in a legal proceeding involving the most powerful person in the country where the only consequence he’d suffer is removal from office.  In fact, it would stand due process on its head to say that the President would be entitled to more protections in an impeachment trial than we are willing to give to criminal defendants who are facing the possibility of lengthy sentences of imprisonment.

It is also worth noting that the President’s substantive argument—even if it is appealing in the abstract—doesn’t make any sense in this particular factual situation.  The vast majority of Americans disapprove of the President’s decision to withhold military funding from Ukraine in order to get a public announcement about an investigation into a political rival.  So even if people might disagree about how, precisely, to define a presidential abuse of power, there is a lot of agreement that these particular actions qualify.  It is also incredibly difficult to argue that President Trump didn’t know that it was an illegal abuse of power to withhold military funding from Ukraine when he made the decision to do so.  As President Trump was refusing to release the money that Congress had appropriated, career officials were sending the message to him and his advisors that this course of action was not legally permissible. 

Finally, it is hard to ignore how President’s own actions.  He has previously said that Article II gives him unlimited power.  And since his actions became public, President Trump has insisted that he did nothing wrong and that his phone call with the Ukrainian president was “perfect.”  This behavior is hardly what we would expect from someone who is merely uncertain about the limits of his power.  To the contrary, President Trump appears to believe that his presidential powers include the ability to put this sort of pressure on a foreign nation.  And he likely will see an acquittal in the Senate of a confirmation of such sweeping power.

Law Professors, Lawyers, and Ethics

It was announced last week that Harvard law professor Alan Dershowitz has been added to President Trump’s impeachment legal team.  As Dershowitz has told multiple media outlets, it will be his role to argue that, as a constitutional matter, a President cannot be impeached unless he committed a crime.  I assume that Dershowitz’s faculty position at Harvard will give his argument additional gravitas and authority in the eyes of at least some Senators and some members of the public.

When Dershowitz appeared on CNN’s State of the Union this weekend, CNN legal analyst Jeffrey Toobin took great pains to point out that Dershowitz was making his argument about what the Constitution requires as an advocate for Trump, not as a neutral expert.  Dershowitz seemed surprised and annoyed that Toobin made such a big deal about the issue. Dershowitz readily conceded that of course he was “just a lawyer” who will be acting as an advocate, not as an expert witness. (You can see the exchange here, beginning around the one minute mark.)

But we shouldn’t overlook why Toobin thought it was important to emphasize this point on national TV.  Dershowitz is routinely identified as a constitutional scholar and a Harvard law professor. Those titles allow him to claim expertise. It gives him an air of neutrality that he wouldn’t have if he were appearing only as a lawyer. As Toobin implied, because of Dershowitz’s position at Harvard and because he will be making an argument about how to interpret the Constitution, people might mistake Dershowitz as a neutral expert.  Indeed, I imagine that it is his position at Harvard that has (at least in part) given Dershowitz the large public platform that he enjoys and that led President Trump to ask Dershowitz to join his legal team.

I’ve previously expressed concerns about law professors offering opinions on matters of public discussion.  In particular, I have concerns about law professors offering opinions outside of their areas of expertise—concerns that have only grown with the current impeachment.  But I think that Dershowitz’s joining the President’s legal team as a lawyer in order to make a particular legal argument sets up a conflict between his ethical obligations as a lawyer and his ethical obligations as a scholar. 

I believe that Dershowitz, as a scholar, has obligations of sincerity, candor, and openmindedness.  And I think that those scholarly obligations may conflict with his ethical obligation as a lawyer to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”   For example, I don’t see how a law professor who has been specifically asked to represent an individual in order to make a particular legal argument about a difficult legal question, such as the original meaning of a particular constitutional provision, can say that he approached that question in an openminded fashion.  He was retained to arrive at a particular conclusion; that seems like the opposite of openmindedness to me.

I want to acknowledge, of course, that some law professors earn money by consulting with practicing lawyers or by appearing as experts in litigation.  And plenty of law professors will, at least from time to time, litigate on behalf of one or more clients.  Those positions probably come into conflict—at least some of the time—with our ethical obligations as scholars.  And so I wish that law professors would spend more time thinking about our ethical obligations.  (For those who are interested in the topic, I recommend this effort that I was a part of a couple years ago in connection with the Marquette Law Review; relatedly I also recommend this excellent article by Richard Fallon about law professor amicus briefs: )

But I do worry that the particular example of Dershowitz and the Trump impeachment raises even more problems that these other situations—namely, it raises a serious problem of role confusion and unsophisticated actors.  When a law professor makes representations as an expert witness in a litigation, she has not assumed the ethical obligations of a lawyer.  She can still give an honest expert opinion that complies with her ethical obligations as a scholar without worrying that she has breached an ethical obligation to the client.* When law professors represents clients in litigation, they often do not identify themselves as law professors and so there is no role confusion.  When law professors do identify themselves by their academic role in litigation—such as when they sign a brief and include their academic institution—judges can act as a check on any role confusion.**  Perhaps judges might be more likely to accept a constitutional argument that is made by a high-profile constitutional law professor at a fancy school.  But judges also know that, once they are representing a client, law professors are bound to zealously advocate for that client.  In other words, judges are unlikely to mistake a law professor who is acting as a lawyer as a neutral expert in that case.

But Senators and the general public may well mistake Dershowitz as a neutral expert in this case.  They may be unaware of the ethical obligations that he has towards the President --- obligations that will almost certainly affect how he shapes his testimony and answers questions posed by the Senators.  In light of that, I worry that it may not be enough for Dershowitz to concede in a television interview that he will be acting as an advocate.  He may need to acknowledge it during his Senate argument.  He may need to articulate how his role as an advocate necessarily affects what he can say or do. It might even be necessary for him to say that he is appearing, not in his role as law professor, but in his role as a lawyer for the President.

 

* Of course, the law professor might have a financial incentive to give something other than an honest expert opinion that complies with her scholarly ethical obligations.  And that is also troubling.

** I don’t know how often law professors will identify themselves as such at a trial.  And even if they did, I imagine that they will rarely make arguments based on personal legal expertise.  And if they did, the judge will always instruct the jury on the actual.

Oaths, Impeachment, and Questions of Degree

Senator Lindsey Graham caused quite a stir last week when he said, regarding the impeachment of Donald Trump “I’m not trying to pretend to be a fair juror here.”  Soon after, Senator Mitch McConnell said “I'm not an impartial juror . . . I'm not impartial about this at all.”  While we might all suspect that Graham and McConnell were never going to vote against President Trump in the upcoming impeachment trial, these statements are nonetheless controversial because they seem entirely at odds with the oath that both Graham and McConnell will have to swear at the beginning of the impeachment trial.

The U.S. Constitution states: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.”  The oath itself is not written into the text of the Constitution, but the current Senate rules contain the following oath: ““I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [name], now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’  Similar language about impartial justice has been used in the oath for a very long time, at least dating back to the impeachment trial of Andrew Johnson.

While the text of the Constitution does not say anything about impartiality, it seems pretty clear why impartiality is included in the oath.  In Federalist 65, for example, Alexander Hamilton stated that the Senate was the optimal body to try impeachments because they were independent and thus more likely to be impartial:

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

In other words, Hamilton wanted the Senate to make these decisions precisely because it was more insulated from political pressures.

Others have noted that the statements by Graham and McConnell are, on their face, inconsistent with the oath.  I agree.  But I wanted to write this post in response to a counterargument that I’ve seen—namely, that because impeachment is necessarily a political process, we cannot expect the Senators to actually be impartial.  Perhaps the oath is outdated, some say, and in a post-Seventeenth Amendment world,* we must expect that Senators will make their decisions solely on the basis of partisan considerations.  In other words, some are arguing that, the oath notwithstanding, we cannot expect political actors to behave impartially.

I am no impeachment expert, but I think that this issue raises a deeper question that is worth talking about.  The question is whether we can acknowledge that impeachment will necessarily include political considerations, while, at the same time, insist that it be something other than an exercise in rank partisanship. That politics will play a role in impeachment is, of course, inevitable because the task was assigned to Congress.   But even if politics has some role to play--or at least will play some role--in impeachment, that doesn’t mean we should throw away the idea of the oath or the principle of impartiality.  I think we can acknowledge some role for politics without saying that politics is the only thing that will or should matter. 

I see an analogy here to judges and the role of personal values and judgment calls. I know a number of people who insist that judges must adopt a methodology such as textualism or originalism in order to constrain them from making decisions based on their own values or policy preferences.**  Their argument seems to be that, if we acknowledge that a judge’s values should sometimes guide their decisions, then there is no stopping point—judges can simply substitute their preferences for all policy decisions by the political branches.

This argument about judges ignores hundreds of years of history during which judges routinely decided cases on the basis of their intuitions about right and wrong.  The common law process—in which judges would make modest decisions, and then later attempt to identify broader principles—required judges to consider policy outcomes.  And although the system was hardly perfect, it rarely (if ever) resulted in the parade of horribles recounted by those who counsel judicial restraint above all else.

In fact, I have sometimes wondered whether judges tended to issue modest decisions precisely because everyone understood that it was the judges themselves who were making important decisions.  Maybe it is easier for modern judges to make sweeping countermajoritarian decisions when they can say that the text or the history of the Constitution demands such a decision.  If judges today had to say they were making a decision because they personally believe it to be the correct outcome, would they, perhaps, make more narrow decisions?

Similarly, we could acknowledge that Senators are likely to be swayed by political considerations, but also expect them to observe certain norms of impartiality.  For example, what if the Senators openly tried to grapple with the inevitable pull of partisan politics? What if they were to say something like “I know that, as a Republican (or Democrat), people might worry that I am going to vote against (or in favor of) removal based only on politics, but here is why I think it is the correct decision . . .”?  In other words, Senators could embrace the idea that politics inevitably shape important decisions, but also try to explain the substantive, non-political reasons for their decisions.

In any event, the path that Graham and McConnell have taken seems untenable to me. I don’t see how either of them can say these things and then swear an oath to do “impartial justice.”  Whatever the phrase “impartial justice” means, it does not mean loudly declaring that you refuse to be fair.

 

* I find the role of the Seventeenth Amendment in all of this to be fascinating.  If anyone knows of some good writing on the Seventeenth Amendment and impeachment, please let me know!

** There are, of course, other reasons to adopt such methodologies. But a number of smart people I know have said that they prefer such methodologies because they constrain judges.

Bribery, Impeachment, and the Common Law

Earlier this morning I published an online essay with The Atlantic about how the crime of bribery fits into impeachment. The editors at The Atlantic made me take out a lot of nerdy stuff about legal treatises.  And while I totally understand why that level of detail probably isn’t appropriate for a general audience, I wanted to offer that level of detail to the other law professors and lawyers out there who care about how we ought to understand bribery as it relates to impeachment.

The Constitution specifically lists bribery as grounds for impeachment.  Article II, section 4 says: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  I’m intrigued by the use of the word “shall” in that Clause.  (Does that mean it's mandatory rather than a matter of discretion?!)  But I’m a criminal law professor, not a constitutional law expert, and so I want to try and stay within my area of expertise.

Because there is a credible argument that President Trump committed bribery when he withheld military aid to Ukraine in return for announcements of political investigations, the public obviously cares what the word bribery means in the Constitution.  I’ve seen a number of people offer opinions on the issue. And while I do not think that there are clear cut answers here, I think that the opinions that are being bandied about are insufficiently nuanced, if not wrong.  So here is my more nuanced take.

First, let’s be crystal clear that current federal bribery statute does not tell us what the word bribery means in the Constitution itself.  The current federal bribery statute, 18 U.S.C. 201, wasn’t enacted until well after the Constitution was adopted. That doesn’t mean that whether Trump committed statutory bribery is irrelevant to impeachment. It could most certainly establish that Trump committed a high crime or misdemeanor.  But it doesn’t tell us whether he committed constitutional bribery.

So what is constitutional bribery?  Ben Wittes said on Twitter a couple of days ago that the House of Representatives gets to define the term.

I have a ton of respect for Ben. But I don’t think that, as a legal matter, the House gets to adopt its own definition of bribery.  To be clear, Ben’s point may be that the House has the de facto power to define bribery. But if we are talking about what the Constitution *means*, then we should care about legal definition, not de facto power.  And it makes me a little queasy every time that I hear people say that impeachment is a purely political issue.  Maybe it is as a practical matter.  But as a law professor, I’m unwilling to accept that law has no role to play in Constitutional moments, such as impeachment.

So what does bribery mean in the Constitution as a legal matter?  After all, the Constitution specifically defines the only other crime that it lists as grounds for impeachment—treason.  Yet it doesn’t define bribery. 

Even though it isn’t defined in the Constitution, we still know what the people who wrote and ratified the Constitution meant by the word bribery.  As Justice Story said in his influential Commentaries on the Constitution, they meant the common law crime of bribery.  “For the definition of treason, resort may be had to the Constitution itself; but for the definition of bribery, resort is naturally and necessarily had to the common law; for that, as the common basis of our jurisprudences, can along furnish the proper exposition of the nature and limits of this offence.” 

So what was the common law crime of bribery at the time the Constitution was written?  In particular, does it include a President who solicits a bribe from a foreign official but never receives it?  Well, that’s complicated.  And, unfortunately, there are a few takes floating around out there right now suggesting that it is cut and dry.  It is not.

Here is the Wall Street Journal saying that the President’s behavior doesn’t qualify as common law bribery.  Apparently the folks at WSJ who wrote this relied on a “friend” to help them with the historical argument. But I don’t think that friend did them any favors.  More important, because these authors apparently aren’t lawyers, there are some real ambiguities in the two arguments they make.

One of their arguments is that this isn’t bribery unless President Trump sought something “specific and tangible” like money.  It’s a little unclear if the WSJ editors are making a statutory argument here, or if they are making a common law argument.  As a matter of statutory law, they are definitely wrong.  As Randall Eliason has explained the “thing of value” that the official tries to obtain in a bribery case is very broad:

It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

As a question of common law, the WSJ doesn’t provide any historical support for the idea that bribery has to involve something “specific and tangible” like money.  In fact, the historical sources that the WSJ editors do provide—Blackstone and Jacob’s Law Dictionary—seem to undercut their argument.  Both of those sources talk about “any undue reward.”  The most obvious reading of that phrase is much broader than just money.

The Wall Street Journal op ed also argues that this isn’t bribery because the exchange never happened.  Trump released the aid, and the Ukrainian President never announced the investigation.  Of course, as a matter of statutory law, no exchange is required.  It is enough for someone to solicit a bribe or to offer one.  But what about as a matter of common law?

Well, that’s not entirely clear.  Ben Berwick and Justin Florence have an essay over at Lawfare that explains this in some detail why the common law probably did not require an exchange to have occurred. They cite a number of treatises which include the mere offer of a bribe in the definition of bribery.

However, I have some concerns about the Berwick/Florence essay.  I agree with them that the majority of relevant treatises include the *offering* of a bribe in the definition of bribery.  But the treatises don’t include the solicitation of or demand for a bribe in their definitions.  They speak in terms of the official accepting or receiving a bribe.

To be clear, it was still illegal for officials to solicit or demand bribes.  But if an exchange didn’t actually occur, then the official may have been charged with a different crime—like attempted bribery or extortion—rather than bribery itself.  As an old Harvard Law Review development explains: “At common law the distinction between bribery and an attempt to bribe was largely academic; both were misdemeanors, and equally punishable.”

So where does that leave us?  Is Laura Ingraham correct (at least as a constitutional matter) that this is only “attempted bribery”?

I don’t think so—especially not if we look at the fact that Trump’s actions could be seen not only as an official *seeking* a bribe, but also as someone who offered a bribe.

Think about this from Ukraine’s perspective.  Trump offered them hundreds of millions of dollars in return for the official act of launching an investigation.  Nobody is really talking about this because the federal bribery statute is concerned with bribing officials here in the U.S.  But common law bribery didn’t have jurisdictional limits. 

Looking at Trump as the person who offered the bribe, the common law case against him is incredibly hard to dismiss.  It fits in the definitions provided by Blackstone and other treatises. It’s also consistent with the actus reus of a bribery crime that Congress adopted in 1790.

So where does that leave us as a constitutional matter?  As I said in the Atlantic essay—it’s not entirely clear cut.  But the weight of the historical record is against the President’s defenders who are trying to say that this behavior doesn’t fall within the Constitution’s use of the word bribery.

Judging Lawyers Based On Their Clients

Yesterday the New York Times published a lengthy story on external work that Elizabeth Warren did while she was still a law professor.  The story, which is titled “Elizabeth Warren’s Days Defending Big Corporations” focuses on a few different themes—the amount of money that Warren made off of these external gigs, the fact that her campaign’s summaries of these representations is overly simplified, and the identity of the clients she represented. 

As I explained last spring, when the Washington Post wrote about the fees that Warren collected for this work, the amount of money that Warren made for these representations seems to be within the range of what other professors with comparable experience and profiles charge.  And while I think that we could have a fruitful and worthwhile conversation about the desirability of law professors taking on this paid external work, that doesn’t seem to be the upshot of the Times or WaPo stories. 

The Times does point out that the summaries that the Warren campaign put out of these representations are overly simplified.  And as someone who generally expects candor and nuance from other law professors (even former law professors), I was sorry to see that Warren’s campaign isn’t holding themselves to that standard.  But the Twitter horde’s response to the story seems to be one of outrage: How dare Warren have any corporate clients? Corporations are, by definition, evil!!  In light of this weird, kneejerk response, I understand the campaign’s decision—even if I don’t approve of it—to oversimplify in order to push back against this lack of nuance in public opinion.  And the Times headline suggests that the editors at the paper at least know about this rabidly anti-corporate viewpoint (and perhaps share it themselves).

I won’t rehash here the argument that I made on Twitter – which is that even a non-simplified description of Warren’s work for corporations shows that she was, in all of these, cases pushing for a robust bankruptcy system in which the bankruptcy process fully and finally discharges all debts and liabilities.  (In other words, according to the Times’ own reporting, Warren’s work for corporate clients was consistent with her academic principles—principles, which she undoubtedly believes are important to protecting ordinary people.)  Instead, I’d rather talk about why it’s newsworthy to talk about the identity of Warren’s clients.  Because there is no denying that it is the identity of Warren’s clients—i.e., that they are corporations—that folks who support other candidates in the Democratic primary seem to be most worked up about.

I think this is a topic worth talking about because it is part of a larger question—namely whether to judge lawyers based on the identity of their clients.

 

Whether to judge lawyers based on their clients is, of course, hardly a new issue.  The issue is even mentioned in the ABA Rules of Professional Responsibility, which say that “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” I’d always assumed that this rule represented the conventional wisdom within the legal community, but I’m no longer so sure.

My doubts started when I saw a number of lawyers and law professors that I know criticize Jamie Gorelick for her decision to represent Jared Kushner.  Gorelick is a long-time Democrat who served in Bill Clinton’s DOJ.  My doubts grew as Harvard Law School’s Ron Sullivan faced heavy criticism by other lawyers for representing Harvey Weinstein.  Some people defended Sullivan (and criticized Harvard’s actions), but other lawyers and law professors who I admire joined the chorus of Sullivan’s critics.

The criticisms about Gorelick and Sullivan seemed to fall into two related but different categories:  The first was about the professional choices that the lawyers were making.  Specifically, the argument was that high-profile lawyers can pick and choose among their clients.  Every client that a lawyer represents comes with opportunity costs—if you represent client A, then you may not have the time to represent client B.  Because lawyers must choose between clients, so the argument goes, their choices should account for whether clients or causes are worthy of their time.

The second argument was about the fact that these clients could choose between lawyers.  Because Kushner and Weinstein could afford to pay for an attorney, the ordinary arguments about how everyone needs a lawyer didn’t apply.  Their wealth was going to buy them a lawyer, the critics argued, and so people like Gorelick and Sullivan didn’t have to take the case in order to ensure that justice was done.  In some ways I think that this argument was made defensively.  If the argument is about whether clients can pay, then it distinguishes the Kushners and Weinsteins of the world from the indigent criminal defendants who are accused of horrific crimes.  Those indigent clients can’t pay, the critics argued, and so the access to justice argument still has force.

I raised the question of judging lawyers for their clients in my Professional Responsibility class earlier this semester.  The students were pretty split.  Those who students who see lawyering as a way to bring about change in the world seemed more open to criticizing those who choose to represent the Kushners and Weinsteins.  But others argued that the distinction between clients who can pay and those who can’t is unable to take the weight of the argument—they seemed to think that the worldview that endorsed judging lawyers for their paying clients is all too likely to bleed over into judging lawyers for their non-paying clients.

Personally, I’m not really sure what to think.  My inclination is that we should judge lawyers by the quality of their arguments, rather than the deeds of their clients.  But I am hardly confident about that view, and I’d be interested to hear from others.

As for law professors in particular, I think that the issue is probably more complicated than we’d like to think about.  It’s tempting to say that this external work is entirely discretionary, and so we ought to feel more comfortable judging law professors for their clients.  But for some law professors—especially those who live in expensive cities or who don’t come from family money—I’m sure that they take on this work, at least in part, because they are trying to pay their mortgage or pay their kids’ tuition bills.  And, in any event, if a law professor is using external representation or consulting as a way to change the law—especially to change the law in a way that is consistent with her scholarship—I’m not really sure that it matters who the client is.  The law is, after all, generally applicable. And the fact that a change in the law might benefit people or companies that we don’t like hardly seems like a good reason not to improve the law itself.

District court abstains in Trump subpoena case (Fast Update)

The Southern District of New York abstained under Younger from a federal lawsuit by the President seeking to stop enforcement of a New York grand-jury subpoena seeking 8 years of Trump tax returns and financial records. The court abstained in a meticulous Younger analysis, then explained why the President did not enjoy immunity warranting a preliminary injunction even if it kept the case. The Younger analysis is almost certainly correct. The President's attempt to create an exceptional-circumstances exception by analogizing his immunity to double jeopardy (which some courts have held as a basis for not abstaining) was interesting, but I think properly rejected.

Given Steve's thesis that Trump and his DOJ cannot stand passing through the court of appeals, next step SCOTUS on a petition for cert before judgment?

Quick Update: The Second Circuit stayed the decision. But what did it stay and what does it mean to stay it? The district court abstaining? It makes no sense to "stay" a decision declining to hear a case. The denial of the preliminary injunction, which was arguably dicta? What does the stay of the denial of an injunction do--it can't create the injunction, which was never issued (because the district court lacked the power to issue it). What the Second Circuit wanted to "stay" is the state-court subpoena, but it has no power to do that. Ah, procedure.

Further Update: The Second Circuit order states

Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal, IT IS HEREBY ORDERED that a temporary administrative stay is granted pending expedited review by a panel of the Court.

So the court did stay the subpoena, not the district court order. I have had some conversations with Civ Pro colleagues and the general view is this makes no sense. Administrative stays are routine  as a precursor to turning the stay to a motions panel. But there is nothing to stay here. The court cannot "stay" a dismissal of an action or the denial of an injunction. Now there are mechanisms for the court to do this, namely under the All Writs Act as in aid of the court's appellate jurisdiction. But that is not what Trump asked for (it requested a stay) and the court did not do the (I expect) more complex analysis required before issuing a writ. It seems as if the court took the usual approach to an unusual case. In the routine case, the district court enjoins enforcement of a law or reg and the court of appeals stays that injunction; here, it rotely applied that procedure in a situation that does not match.

Declination Decisions and Privacy

In response to my post from yesterday about the Special Counsel’s decision not to prosecute Don Jr. a few people have remarked that the need to protect individual privacy counsels against publicizing nonprosecution decisions. If prosecutors were to declare that someone committed a crime but not actually bring charges, so the argument goes, then the defendant would be unable to clear her name through the adversarial process. 

This argument has been around for quite some time.  Courts have used a variation on this argument to state that prosecutors may not identify unindicted coconspirators by name in indictments.  And it was famously part of the reason that Rod Rosenstein offered in his infamous letter suggesting that James Comey ought to be fired as Director of the FBI. 

I want to take the argument seriously, but I have some reservations about the argument, not only in this particular case, but also more generally.  First, to the extent that Don Jr.’s privacy needed to be protected in the Special Counsel’s report, I’d note that the relevant facts to support a CFAA prosecution were *not* redacted from the report---all that was redacted was the reasoning behind the decision not to prosecute.  I find it difficult to see how the redaction of the analysis, but not the facts, protects Don Jr.’s privacy.  I can think of at least two responses to this point: (a) that the factual discussion also should have been redacted, and (b) that a declaration by prosecutors that Don Jr.’s conduct constituted a crime is far more damaging than the recitation of facts, most of which had been previously reported in the media.  I don’t really have a rebuttal to counterargument (a).  But I’m not thoroughly persuaded by (b).  If nothing else, the harm to Don Jr. at that point seems to be one of reputation, not privacy.  Also, if we were truly committed to the idea that we need to protect individual privacy in all cases that do not result in formal charges, we would have to seriously alter how police publicize arrests of suspects before prosecutors have decided whether to file charges. 

In any event, if the real concern with nonprosecution decisions is that they might invade the privacy or harm the reputation of a particular individual, it seems to me that prosecutors could articulate their decisions in a way that minimized the privacy and reputational harms.  For example, in the Special Counsel’s report, Don Jr.’s name and identifying information could have been redacted, but the substantive analysis on which the declination decision was based could have been left in.  That would allow the public to have more information about when DOJ pursues charges under overly broad statutes---information that, as I’ll explain in more detail below, is extremely important for the public to have.

But before turning to that argument, I wanted to address a comment by Orin Kerr, namely that he didn’t think that the Mueller report needed to “offer a broader explanation when to enforce the law” because “DOJ policy docs already have that for those interested.”

Assuming that Orin is correct that DOJ policies offer sufficient detail on this issue for those who seek it out, I think it is important to note that the general public knows very little about nonprosecution decisions.  I have seen many nonlawyers (and some noncriminal lawyers) repeatedly express the view that prosecutors must bring charges in cases where the defendant has broken the law.  It is not only that these criminal justice outsiders think that prosecutors *should not* decline to prosecute for policy reasons, but rather that they are *entirely unaware* of how often prosecutors decline to prosecute on policy grounds.  This ignorance is understandable because even those of us who know that nonprosecution is common have a hard time obtaining information about how frequently it occurs and under what circumstances.  Put differently, even if Orin is correct that interested parties could learn more about DOJ nonprosecution policies, a great number of Americans don’t even know that such things happen, so they are unlikely to seek out additional information on the topic.

But even assuming everyone knew about nonprosecution as a policy, how much could we learn from reading DOJ public policies? In my opinion, not very much.  Let’s look at the full list of factors listed in 9-27.230, the section cited in the CFAA analysis in the Mueller report:

In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

1. 1. Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
   2. The nature and seriousness of the offense;
   3. The deterrent effect of prosecution;
   4. The person's culpability in connection with the offense;
   5. The person's history with respect to criminal activity;
   6. The person's willingness to cooperate in the investigation or prosecution of others;
   7. The person’s personal circumstances;
   8. The interests of any victims; and
   9. The probable sentence or other consequences if the person is convicted.

I don’t know about you, but I don’t think that this list allows me to make any educated predictions about when prosecutors will pursue charges and when they will not.  For example, the list does not include the aggravating factors that James Comey identified as necessary in order for DOJ to bring charges for mishandling classified information.  Nor am I able to determine based on this list whether the decision not to charge Don Jr. was made because of some unique facts in his case or because DOJ, as a general matter, does not bring CFAA charges for unauthorized password sharing unless there are other aggravating circumstances present.  (There is commentary to this policy, but it also does not provide that sort of substantive information.)

Perhaps those law professors who served as federal prosecutors think that DOJ policies gave enough guidance about when nonprosecution was appropriate---I’d be interested to hear from them.  But as a member of the public, I don’t think that these policies give us enough information about how prosecutors choose to enforce overly broad laws.  In my opinion, that is a serious problem because it means that the public doesn’t have sufficient notice about what will be treated as illegal.  It can also allow for arbitrary and discriminatory enforcement.  And it doesn’t allow the public to serve as a democratic check on prosecutorial decisionmaking.  (I discuss the problem in some detail in Part III of this forthcoming article.)

The ability of the public to serve as a democratic check on prosecutorial discretion may seem less important in the federal system, where the Attorney General and the U.S. Attorneys are appointed by the President.  After all, criminal justice issues likely play a very small role in who people vote for in presidential elections.  But the vast majority of state prosecutors are elected.  How elected prosecutors choose to exercise their discretion—including when they decide not to prosecute--is probably the most important information that voters need (and almost never get).

Anyway, these are just some preliminary thoughts.  I definitely need to reflect further on how to balance these concerns that I’ve identified against the need to protect individual privacy and reputations.  Nonprosecution decisions raise complicated questions, which a number of law profs address in various very thoughtful articles.

As for the topic of democratic accountability and prosecutors, that’s an area where I hope to spend more time and effort. 

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.

CrimFest! 2019 at Brooklyn Law -- Registration still open!

As many of you know, Dan Markel did an amazing job creating a community for law professors.  One of the many things that he did to create that community was to start CrimFest!  CrimFest is an informal, annual conference where those of us who study criminal law, criminal procedure, and related criminal justice topics meet to workshop papers.  

Even though Danny is gone, CrimFest continues.  This year’s conference will be held at Brooklyn Law School in New York.  The conference will open with an informal dinner on the evening of Sunday, July 14.  Then we will have two full days of panels on Monday July 15 and Tuesday July 16.  Attendees are responsible for their own travel and hotel expenses. The conference will provide breakfast and lunch, and will subsidize a happy hour on Monday evening.  The registration fee will be $65.00.

If you would like attend, please add your information to this spreadsheet:  https://docs.google.com/spreadsheets/d/1DbYmO7GXCZZF7ABzZx7LcuB7MDUU7QgemvrxDihy-rA/edit?usp=sharing

As you will see, this is an open access document.  So please be very careful when adding your own information not to delete or otherwise alter any information that has been added by others.

Registration will remain open until May 31.  So you need not complete all registration information at this time, including whether you intend to workshop a paper, or the topic of the paper you intend to workshop.  But please be advised that, as in years past, we are limiting presentations to true works in progress.  You are welcome to present as little as a 3-page sketch of a project idea, a fully written draft, or anything in between.  But papers that have already been submitted for publication are not eligible.

Finally, CrimFest is intended to be a very inclusive conference:  It is not limited to those who have tenure or tenure-track positions.  In fact, we usually have a good crowd of fellows and VAPs who are planning to go on the market.  So please feel free to share this email with your colleagues.  Anyone who has the link to the spreadsheet can register!

I look forward to seeing many of you in Brooklyn this summer!

The Compliment Sandwich

Law professors spend a lot of time assessing the work of others and giving feedback on that work.  We give feedback as part of scholarship workshops, as part of hiring and tenure reviews, and as part our interactions with students, just to name a few situations.  Some law professors are really incredible at giving feedback.  Others less so.  Perhaps because of the wide variation in styles and effectiveness, I’ve had a number of conversations with other law professors on the most successful ways to give feedback on another’s work.

One model—a model that I prefer—is what a friend of mine calls “the compliment sandwich.”  The basic idea is to situate your criticism between an opening compliment and a closing compliment.  Sometimes the compliment is nothing more than a quick aside before and after lengthy criticisms—a compliment about having chosen an important topic to begin, for example, and a compliment about how you think the paper adds to the field to end.  The “bread” in that compliment sandwich is very thin—“almost more like a cracker or a pita, than real bread,” my friend joked.  Other times the criticism is negligible next to the compliment—kind of like a finger sandwich:  mostly bread with just a tiny bit of filler.  But you get the basic idea—like a sandwich, criticism is easier to consume and digest if it is wrapped up in something that is both neat and agreeable.

I have been thinking a lot about the compliment sandwich recently because I’ve heard a few people speak negatively about those who are too quick to compliment others.  There are, for example, a handful of law schools and law professors who seem to eschew any positive comments at workshops as a point of pride.  Instead, the feedback delivered is uniformly critical, and the tone of the criticism can be extremely negative.  The decision to be only critical in feedback seems intentional—they seem to eschew compliments and focus only on the problems with a person’s work because that is what “serious” people do.

Most recently, I had an exchange with a lawyer named Scott Greenfield on Twitter about a similar topic.  I was defending the idea that people ought to take more time to praise people’s decisions—especially the decisions of those who ordinarily make decisions of which we disapprove.  One example that I gave was President Trump.  I think that Trump has made some laudable decisions to grant executive clemency.  He has also made a number of other horrible decisions with which I strongly disagree.  But I think it is important for me to express approval of the clemency decisions.

Greenfield disagrees.  He wrote—first on Twitter and then on his blog--about the drawbacks that he sees with “promiscuous praise.”  Of course, to use a pejorative word like “promiscuous” indicates that disapproves of whatever is being described.  But Scott helpfully elaborated to say that:

[T]here are many who praise too often. They praise anyone because the outcome is agreeable. They praise their friends to show support. They praise the banal. Sometimes they praise the dumb, even the flagrantly wrong, if it serves a goal they prefer.

Offering encouragement by way of praise has become a ubiquitous tool, particularly in academia, I still have flashbacks about being “instructed” when teaching cross-examination to law students that all criticism of their work had to be prefaced by praise. What if they did nothing praiseworthy? Come up with something. Make it up. But under no circumstances could there be criticism without praise preceding it.

This was taken for granted as the preferred pedagogical means to get students to accept the criticism. Without praise, they would feel they were being attacked. With praise, they were encouraged. But this had two side-effects, that it cheapened praise to the point of meaninglessness, as it was given constantly, often effusively, for the most trivial things. “It was wonderful how you didn’t drool when you began cross!” Except the words, “When you stood up to cross, your demeanor was very professional. Well done!”

As I read Scott’s argument I saw that he was criticizing the compliment sandwich.  And so I want to defend the practice.  Because I like the compliment sandwich.  For one thing, it is polite.  And call me old fashioned, but I like being polite.  And I especially like it when other people are polite to me.

Another reason that I like the compliment sandwich is because I think that people are more apt to listen if you begin and end what you are saying on a positive note.  This is separate from just being polite.  It is about beginning and ending about what is good about the project, rather than what needs to be changed.  Now Scott thinks that there are costs associated with this point of view.  As he explains using the example of what he saw at law schools when instructing students on cross examination:

The praise was, for the most part, empty and cheap. It was unilluminating. But it had two negative side effects. First, it bred students who were praise-dependent, who needed validation, even if they realized it was empty. Second, anything that wasn’t praise was seen as an attack. It became difficult, if not impossible, to explain to some students why their compound, open-ended question wasn’t good, because what they heard was “you’re stupid and a failure.”

I don’t know if Scott is correct that too much praise can lead people to (a) need more validation, or (b) be incapable of accepting criticism.  Those seem like empirical questions.  But I wonder whether his concern is really about the quality and the substance of the compliments, rather than practice of including compliments as a precursor to criticism.  Because it is true that a “thin” compliment in the compliment sandwich doesn’t add much in the way of substance.  Instead it seems like a pro forma gesture more than anything else.  But maybe the approach should be to ensure that the compliment serves a substantive purpose, rather than to scrap the idea of the sandwich all together.

Which reminds me of a conversation that I had with another friend about giving feedback on work.  She insists that it is just as important to tell people what they are doing well as what they aren’t doing well.  Especially on early drafts, when people are trying to decide what direction to take their project in, it is important for them to know what seems to be working and why.  Since she and I had that conversation several years ago, I’ve tried to follow that advice.  Personally, I’d like to do a better job focusing on why certain things work well.  Just as I also try to, when giving criticism, offer some thoughts on how to correct what I see as the problems.  Those types of comments—why something works, why it doesn’t work, and how to improve—are much harder than simply pointing out flaws.  Saying that something is bad is much, much easier than trying to explain what might make it good.

Spending at least some time talking about what makes a project good could also help to avoid giving comments that are really about what paper you would have written, rather than comments designed to help the person write a better version of their project.  I think a lot of us fall into this trap when giving feedback:  We often think about what we would have writtenor what we think is interesting.  But those sorts of comments are sometimes far less helpful.  And I think this concern applies not only to professors writing articles, but also to other situations, such as giving students feedback on a trial skill:  There are lots of different ways for lawyers to be successful in the courtroom.  Taking the time to compliment a student on what he or she did well will help the person giving feedback focus on the particular courtroom style that the student seems most comfortable with.  Then the person can give criticisms designed to help the student master that particular style, rather than the style that the person commenting happen to like best.

There is one last reason that I’m going to continue to try and focus more on praise than on criticism:  Criticism is just too easy.  Especially for law professors and lawyers—critical thinking is one of our major skills.  It is basically our job to listen to what someone says and try to identify reasons why that person is wrong.  And I think that skill has some unfortunate side effects.  I think that it is hard to turn that part of our brains off, which makes us kind of unpleasant to be around.  We love to tell people why they are wrong, inconsistent, illogical, etc.  And I think it may also cause some of us—or at least me—to take a much more negative approach in life. 

So I’m sticking with the compliment sandwich.  I’m going to focus on making the compliments less perfunctory and more meaningful.  And I’m going to try and look more closely for the positive things that people say and do.  If, for no other reason, the past couple of years have shown me that there is really no bottom when it comes to the awful things that people are willing to do and say in this world.  The bad will always be right in front of me—so I may as well seek out the good.

 

Transparency as a Sword

As a general matter, I support transparency in the criminal justice system.  It is difficult to obtain reliable data about crime and criminal prosecutions --- especially data from state and local systems.  Because we elect many state and local criminal justice officials, this lack of data and transparency is troubling.  If the public is unable to discover what criminal justice actors are doing, then they will find it difficult to hold those actors accountable.

And so, I was surprised to hear a number of people here in the state of North Carolina complaining about a state law that requires the gathering and dissemination of criminal justice data.  The law requires the collection and reporting of information about when judges waive the collection of court fees in criminal cases.  Here’s the full text of the relevant statute:

The Administrative Office of the Courts shall maintain records of all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs under G.S. 7A-304(a) and shall report on those waivers to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.

The people who are complaining about this law argue that it creates pressure for North Carolina judges not to grant waivers to criminal defendants.  To be clear, the legislature can’t prohibit judges from granting all waivers---if defendants are indigent, then the Constitution forbids the state from imposing these court fees. 

Since I learned about this law, I’ve been wondering:  Is there a way to square my desire for more readily available criminal justice data with the idea that these reports are a bad idea?  After all, for those of us who wish to study the criminal justice system, more data is better than less data.  And if voters need transparency in order to hold their official accountable, then shouldn’t they have this information about their judges?  After all, judges are elected here in North Carolina.

After some reflection, I think that this sort of information could be very valuable.  But it would depend on the nature of the information that was gathered and how much of that information was disseminated.

For example, I could imagine a world in which the Administrative Office of the Courts were asked to gather information that would allow us to put these waiver decisions in context.  For example, the office could also collect information about the annual income or net worth of every defendant.  And then it could present the waiver information in the context of the assets that defendants have or the salaries that they earn.  That information might allow us to assess whether judges are granting waivers only to those defendants who are actually indigent.  If the report tells me that the judges in my county are only granting waivers to people with incomes below $25,000, then I can feel pretty comfortable that waivers are being granted properly.

But the current reports do not provide any relevant context.  Instead, the report consists only of the number of cases in which these fees were waived and those in which they were not waived.* Those numbers are presented both by county and by individual judge, just as the statute requires.  (You can see a copy of the report here.)  So if a judge gives a waiver to a person who has no assets and an annual income of $0, that waiver will be recorded (and reported) no differently than a waiver for a person making $40,000 per year.

It is hard to see the value of a report in which the number of waivers and the proportion of waivers are the only information being provided.  Why should I care about the number of waivers being granted without any further context about the waiver?  That number, without context, is relevant only if people think that waivers ought to generally be granted or generally be refused.  And because I doubt that many voters think that waivers should generally be granted, the reports seem to be a way to try and pressure judges to keep the number of waivers that they grant as low as possible. **

In other words, it seems as though transparency here is being used as a sword against judges.  And the result may well be judges failing to grant waivers to defendants whom they might otherwise consider to be indigent.

 

* There are a few additional columns with information about partial waivers, civil judgments, and other similar data.

** As others have noted, the North Carolina legislature seems to be trying pretty hard to make it difficult for judges to grant waivers, even to those who are truly indigent.

Paying for Public Records

Much to the delight of legal reporters and researchers who study the courts, PACER fees are under attack.  A lawsuit challenging the fees is pending in the Federal Circuit, and the media coverage of the suit is decidedly in favor of the plaintiffs. PACER allows the public to electronically access motions, complaints, briefs, and other documents filed in federal cases.  It charges a fee of $0.10 per page, which is far more than what it costs the courts to store these documents and make them available to the public.  By one estimate, “the cost of retrieving a document from PACER—including the cost  of  data  storage with a  secure  service  used  by many  federal  agencies—[is] only $0.0000006 per page.”  As the New Republic reported: “The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.”  The courts use the extra money to fund other projects, such as courtroom technology needs, that would otherwise be paid for by funds appropriated by Congress.

It appears that the PACER litigation will ultimately turn on a question of statutory interpretation involving the legislation that created the program and allowed for the collection of these fees.  But I’m interested in the case because it raises larger issues about access to public documents.

You see, for the past year, I’ve been conducting a massive research project in which I collect the campaign finance documents for every candidate who ran for district attorney and enter information about the campaign contributions into a database.  (You can learn more about the project here. You can see a summary of our data here.  And our raw data is being compiled here.)

Because we are collecting information from all 46 states that elect their local prosecutors, I’ve been dealing with dramatically different public records regimes while collecting this data.  Some states are fantastic—they put this information online in a centralized state database.  Some even fully digitize that information, allowing you to search not only by candidate, but also by donor.  Other states have decided to leave the collection of campaign finance information to the counties.  And some counties do a terrible job providing access to that information.

More than one county has informed me that they have been unable to locate these records.  Some can’t find the records because they do not have a formal filing system.  Some can’t find them because they keep only paper copies of these records, which were damaged through some sort of accident.

Other counties do a perfectly good job retaining these records.  But they refuse to allow access to the records without significant payment.  For example, one county in North Dakota insisted that I send a check for $50 before they would even look for the responsive documents.  And while I can understand why counties would need to charge for making physical copies and mailing those copies, some counties insist on charging fees for emailing documents—treating email pages no differently than physical copies for fee purposes.  (Here is a recent op ed that I co-authored with a student that describes some specific problems in Kansas.)

I have even encountered counties that charge fees higher than what is permitted by their state open records laws.  One county has a posted fee schedule of $1.00 per page, even though state law only permits charges of 25 cents.  When I asked about the discrepancy, the county clerk responded by waiving the fee.  Another county in different state with a 25 cent per page cap invoiced me for 50 cents per page.  When asked about the cap, the county insisted it had made a mistake—of course they only meant to charge me the statutorily-permitted fees. 

Because I work for a public institution, I routinely asked that these fees be waived.  A small number of counties granted those requests.  But most didn’t.

The responses that I received when I asked for a waiver were interesting.  Some counties said that they never grant waivers—even though the state statutes specifically give them the power to waive—because they want to treat everyone the same.  Several county officials told me that they were unable to grant waivers because their offices depended on these fees to stay operational.  Their state and local governments have cut their tax revenues to such a degree that they cannot afford to operate their county offices without charging people fees.  In other words, the offices were charging these fees not only to support the time an effort of responding to individual requests, but also to offset the ordinary costs of running their government office.  They were using these fees to make up the shortfalls in their budgets.

I find that state of affairs very troubling.  I appreciate that user fees are quite popular, and that they are touted as an efficient way to ensure that those who are actually benefiting from services are the ones paying for them. But even if you might ordinarily support user fees for some government services, I don’t think it is a good idea to depend on fees to run your government.  Governments aren’t business; they are governments.  And we should make sure that they operate even when people don’t “buy” their goods and services.

I am especially troubled at the idea of charging fees for information like campaign finance data.  That is because we make campaign finance data publicly available in order to ensure transparency and accountability.  For example, if my DA failing to indict officers involved shootings of civilians, I need to know if she is also taking money from police unions.  I need to know because it helps me to evaluate her charging decisions.  And if I disagree with my DAs charging decisions, my only recourse is to vote her out of office.  But I need to understand those decisions in order to make an informed decision at the ballot box.  But if my county clerk is going to charge me $50 before even trying to locate those documents, then I am less likely to request them and thus less likely to find out about the donations.  What’s worse, the people who aren’t going to spend $50 to check the campaign finance records of their elected officials are also the same people who are unlikely to be donating to campaigns.  Put differently, it seems bizarre that one of the most important checks we have on money in politics—transparency about that money—can be frustrated by requiring people to pay additional money in order to get access to that transparency.

I am glad that PACER fees are facing scrutiny.  And I am hopeful that they will be lowered.  But I hope that our conversation about document access fees can extend beyond the federal courts.  Some state courts charge even higher fees than PACER.  More importantly, if we decide to deal with issues like corruption through disclosures rather than direct regulation—i.e., making campaign finance information publicly available rather than outlawing campaign contributions—then we shouldn’t charge fees to see those disclosures.

Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!)

An amicus brief was filed yesterday in the Fourth Circuit Emolument Clause case against President Trump.  The brief was filed on behalf of Clark Cunningham, who is a law professor at Georgia State, and Jesse Egbert, who is a linguistics professor at Northern Arizona University.  The brief states that Professors Cunningham and Egbert have undertaken a “scientific investigation” to conclude that the word emolument did not have “a distinct, narrow meaning limited to ‘profit arising from an office or employ.’”  Some people on the platform-that-must-not-be-named are circulating this brief and its conclusion, presumably because it supports the challenge to President Trump’s business practices under the Emoluments Clause.*

So what is this “scientific investigation” that the professors undertook?  Did it involve a microscope?  Or double-blind clinical testing?  Nope.  It involved the use of corpus linguistics --- a new approach to statutory interpretation that I’ve criticized before, both here on this blog, and also in this short essay.

I will not rehash my arguments about why I’m deeply distrustful of corpus linguistics as a tool for statutory interpretation—especially the interpretation of criminal laws.  But I do want to say a few words about characterizing corpus linguistics as “scientific investigation” and why I am concerned that a law professor would allow his corpus linguistics analysis to be characterized that way.  (Note:  The amicus brief was written by an attorney, but Professors Cunningham and Egbert were the clients.  So I am assuming that they had the ability to object to the use of the phrase “scientific investigation.”)

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database,** but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory. 

There is a second reason why I am especially troubled by the use of the term “scientific investigation” to refer to a corpus linguistics analysis:  It allows Professors Cunningham and Egbert to dismiss opposing views as a failure of “scientific method.”  You see Professors Cunningham and Egbert are not the first academics to undertake a corpus linguistics analysis of the word emolument.  There is a 2017 article by Phillips and White in the South Texas Law Review, which uses corpus linguistics to arrive at the exact opposite conclusion.***  The amicus brief cites to the Phillips and White article, but rather than engaging with the article on the merits, it dismisses the article because it relies on an assumption that (according to the amicus brief) “has no scientific basis” and that is “disproved by the linguistic research reported in this brief.”  The amicus brief goes on to state: “Although Phillips & White subtitle their article ‘A Corpus Linguistic Analysis,’ none of their conclusions about the 18^th century meaning of emolument are based on the scientific methods used for the research reported in this brief.”

I find these characteristics of the Philips and White article to be at best misleading, and arguably false.  First, Cunningham and Egbert have “disproven” nothing.  They arrive at an opposite conclusion because they use different assumptions and make a series of inferences.  That’s called “disagreeing” with someone.  But, of course, to say that you “disagree” with someone has far less rhetorical force than to say you have proven them wrong.

Second, Cunningham and Egbert suggest that Phillips and White didn’t use the “scientific method” of corpus linguistics. That suggestion is false.  There can be no doubt that Philips and White use corpus linguistic analysis.  They don’t simply refer to the method in their subtitle; they provide a methodology section in the article, and they explain how they coded the results of their corpus search to arrive at their conclusions.  So I do not see how the statement that the Phillips and White conclusions are not “based on the scientific methods” used in the amicus brief can be true.  Perhaps Professors Cunningham and Egbert might say that their corpus linguistics methodology was superior.  If so, the brief should make that argument, rather than suggesting that their analysis was scientific and the Philips’ and White’s analysis is not.

Which brings me to my major objection to this brief:  It is claiming a mantle to objective truth, when in reality it is recounting a subjective analysis about which reasonable people can – and do – disagree.  To be clear, Professors Cunningham and Egbert are not the only people using corpus linguistics who suggest that the methodology promises to eliminate judicial discretion and make statutory interpretation an “objective” undertaking.  But this brief is a particularly crude example of that argument.  And given that the brief was filed by academic experts in order to aid judges in this case, I find the crude and misleading analysis to be especially troubling.  If law professors (and other professors) are going to file amicus briefs based on their academic expertise, they should be careful not to mischaracterize or mislead.

Let me close by saying that, although I am a corpus linguistics skeptic, there are thoughtful people on their other side of that issue.  People who I respect (but disagree with) think that corpus linguistics can be a helpful and valuable tool for judges in the interpretation of statutes and Constitutions.  I hope that those thoughtful scholars will affirmatively disclaim the use of the word “science” to describe the endeavor and criticize any briefs that present misleading accounts of what a corpus linguistics analysis can prove or disprove.

 

* To be clear, the brief takes no position on “the ultimate resolution” of the case.  But the arguments in the brief support those challenging the President.

** Interestingly, the search conducted by Professors Cunningham and Egbert for this brief is not necessarily replicable.  Footnote 21 of the brief tells us:

The researchers’ search can be approximately replicated by entering “emolument*” in the initial search box that appears after logging into COFEA. The use of the asterisk produces every word containing the string of letters that precede the asterisk. The researchers corrected the raw results of their COFEA search by looking for and adding texts that contained variant spellings or typographical errors that were missed by the initial search and also deleted identical texts, for example texts that appeared in two different source materials.

*** In an interesting twist, one of the two authors of this law review article, James C. Phillips, is a former co-author of Professor Egbert.  And Egbert touts his article with Phillips as one of his qualifications in FN 10 of the amicus brief.

District Attorney Elections in 2019

Most district attorneys are elected in either a presidential election year or a congressional election year.  But some states hold elections for DA in off-cycle years.  By my count, there are 183 local prosecutors up for election in 2019.  

The jurisdictions whose prosecutors who are up for election are included after the break:

Life After Tenure

Several years ago, I attended a panel at SEALS about life after tenure.  I went to the panel because I was almost tenured myself, and I realized that I hadn’t given much thought to how I would conduct my professional life once I’d cleared the hurdle of tenure.  I forget the precise name of the panel and the people who were speaking.  But the panel nonetheless stands out in my memory for two reasons:  First, there was a very big audience for this panel.  And second, I walked out of that room thinking that no one had a particularly good answer to the question “what should you do once you get tenure.”

To be clear, people on the panel and in the audience all had different answers for the question—both about what professors should do, and what they personally had done.  Some people at the panel talked about taking on more administrative responsibility, like serving as associate dean and trying to become a dean somewhere.  One person recommended learning a new language.  Some others recommended that professors “slow down.”

In recent weeks, I’ve found myself thinking about that panel again.  One reason I’ve been thinking about this topic is that I’ve been invited to speak at a conference on March 30^th called “Tenure! Now What?” (There are a lot of fancy people speaking at the conference, and so I feel pressure to say something thoughtful.) 

Another reason that I’ve been thinking about this is more personal:  Someone recently asked me where I wanted my career to be in 5 years.  I didn’t have a response other than to say I haven’t thought about my life in those terms since I got tenure.  The question made me think about the fact that I probably only 20 or 25 years left in the academy.  And so I’ve started to take stock and think about what I want to accomplish in those years.

In any event, I am still looking for answers about what people ought to do once they get tenure.  After all, I need to sound smart at the conference.  That led me to pose the question on Twitter.  Some of the answers were very good --- I recommend that you read the replies to the tweet here. In particular, I recommend Barry Friedman’s standalone thread on the topic, and Orin Kerr's tweets about how asking the question about what to do after tenure raises serious questions about what we are doing before tenure.  Please feel free to add your own thoughts in the comments to this post.  And if you are interested in attending the conference, registration is still open.

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling --- most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Armstrong cites United States v. Chemical Foundation, a 1926 Supreme Court case, as support for the presumption of regularity.  But that case doesn’t seem to provide a particularly sound foundation for the presumption—at least not for the presumption as it is currently invoked by the Court.

In Chemical Foundation, the United States sued to invalidate the sale of foreign patents to Chemical Foundation.  The government had seized the patents pursuant to the Trading with the Enemy Act of 1917, and the President had delegated the power to sell the patents to Frank Polk, who was a counselor for the Department of State.  Polk then ordered the sale of various patents to the Chemical Foundation.  The United States subsequently sought to invalidate the sale, alleging that Polk’s decision to sell was “induced by misrepresentation and [was] made without knowledge of the material facts.”  The government lost at trial, with the lower court finding that the U.S. had “failed to establish any conspiracy, fraud or deception alleged.”  The Supreme Court declined to disturb the factual findings of the lower court, because they were not clearly erroneous.

I assume the Supreme Court could have disposed of Chemical Foundation on this limited ground—namely, that the government had failed to meet its factual burden.  But the Supreme Court went on to state:

The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the courts.

The Chemical Foundation Court cited three other cases in support of the presumption.  None of those cases referenced a presumption of regularity.  Nor do any of those cases reveal where the Chemical Foundation Court located authority for the presumption or what it thought the contours of that presumption to be.  And, most important, none supports the presumption as it was expressed and applied in Armstrong.

The first of these cases, The Confiscation Cases, involved a seizure that the President was authorized by Congress to make, but was actually made by a marshal acting on directions by the district attorney, who was in turn acting at the request of the Attorney General.  The cited portion of the opinion states that, because the statute authorized only the President to make the seizure, “a direction given by the Attorney-General to seize property liable to confiscation under the act of Congress must be regarded as a direction given by the President.”  The Court suggested that this holding was related to a previous decision that “the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.”  It is possible that the Chemical Foundation Court relied on The Confiscation Cases for the proposition that the Attorney General is presumed to act at the request of the President.  But the Chemical Foundation Court did not provide this (or any other) explanation.

The second case cited by Chemical Foundation is United States v. Page. That case involved a requirement that the result of all court-martial proceedings were to be signed by the President.  In Page, that requirement had not been technically satisfied.  The Secretary of War testified that he had forwarded the proceedings to the President, but the Secretary, rather than the President, had signed the copy of the proceedings. Nevertheless, the Court refused to dismiss the court-martial charge.  It stated that “where the record discloses that the proceedings have been laid before the president for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the secretary by whom they are authenticated: and this must be the result here.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that, if the Secretary of War said he forwarded something to the President for approval, that statement ought to be presumed correct.  But that is hardly the only possible way to read this case.

The final case, United States v. Nix, involved a dispute over the travel fees of a marshal to serve arrest warrants.  The marshal claimed travel not only for miles that he traveled, but also for miles traveled by his deputies.  The deputies were not available for testimony or depositions to verify the miles they traveled.  But the marshal was able to show that “his accounts” of the miles traveled by his deputies “had been allowed by the district judge.”  The Court deemed this decision by the district judge “prima facie evidence of the correctness of the items of that account” that “was sufficient to place upon the government the burden of showing any error of fact in his account.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that the official accounting of the marshal ought to be presumed correct.  But it is difficult to tell what, precisely, was entitled to the presumption—the representation of the marshal, or the fact that the lower court found the representation credible.  In short, this line of precedent hardly provides a solid foundation for the presumption.

Although Armstrong was a criminal case, the presumption is not limited to criminal prosecutors.  Many Supreme Court cases discussing the presumption are unrelated to the criminal justice system.  For example, in National Archives and Records Administartion v. Favish, the Court referenced the presumption in creating a higher threshold showing for disclosure in certain FOIA cases.  The Court stated: “[T]here is a presumption of legitimacy accorded to the Government’s official conduct. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it.”

But, as with the cases applying the presumption to decisions by prosecutors, these other cases tend to make only brief reference to the presumption, sometimes including little more than citations to previous cases, which themselves made only brief reference to the presumption.  Indeed, a case that has long been associated with the presumption of regularity afforded to administrative agencies—Citizens to Preserve Overton Park v. Volpe—states only: “Certainly, the Secretary’s decision is entitled to a presumption of regularity. But that presumption is not to shield his action from a thorough, probing, in-depth review.”

Although the Supreme Court has not made the connection explicit, one suspects that the presumption of regularity afforded to prosecutors is related to the ancient maxim “Omnia praesumuntur rite esse acta,” which roughly translated means “All things are presumed to have been done rightly.”  The maxim is sometimes recounted as “Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium”—that is, “All things are presumed to have been done rightly and with due formality unless it is proved to the contrary.”  Recent cases involving the presumption of regularity do not invoke the maxim, but some older opinions do.  Justice Story invoked the maxim in Bank of U.S. v. Dandridge, stating:

[The law] presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie’s late valuable Treatise on Evidence.

As the excerpt from Justice Story’s opinion indicates, the presumption had a number of iterations.  But it also indicates that the presumption of regularity is not limited to executive officials—or even public officials; instead, it applies to everyone.  It is an evidentiary presumption that people act appropriately—an presumption that the party claiming otherwise bears the burden to disprove.

So how on earth did a presumption that applies to everyone and merely sets a burden of proof transform to shield prosecutors from discovery?  I’m not sure.  But I imagine that it is attributable, at least in part, to the fact that the courts do not want to be inundated with cases challenging executive action.  And I imagine that it is also related to the fact that the post-Warren Court has (at least at times) made a big show out of not interfering in the business of the political branches.

In any event, I think that it is worth noting the shaky foundations of the modern presumption of regularity.  History shows that it is an evidentiary presumption that applied to public and private actors alike; it was used to allocate burdens of proof, not to prevent discovery or to insulate executive action from judicial review. 

Winter Break Reading Recommendation

During the winter break, I always find myself with more time than usual for pleasure reading.  My usual fare is relatively light and escapist.  But, based on a recommendation, I recently picked up The Woman at the Washington Zoo.  The Woman at the Washington Zoo is a collection of writings by Marjorie Williams.  Williams made a name for herself writing political profiles for the Washington Post and Vanity Fair.  The book contains several of those profiles, as well as more personal essays about parenthood, the death of her mother, and her own battle with cancer.

Even though I finished the book a week ago, it has really stuck with me.  The profiles provide a fascinating glimpse into the political world of the late 1980s, 1990s, and early 2000s.  Although many of the names and events were familiar to me, as someone who graduated from law school in 2002, I found the inside-the-beltway chatter about these people and events to be a great revelation.  I didn’t pay any attention to politics until the 2000 election, and so my understanding of the political landscape from the 1980s and 90s is limited and based mostly on present day sources.  But the current view of that landscape is quite different than the contemporaneous view. 

For example, Williams remarks, essentially in passing, that people in Washington did not think highly of Ronald Reagan’s presidency; they worried that he was beholden to the far-right and that he was a passive player in the White House.  That does not match up at all with the description of Reagan that one encounters in modern public discussions.  Reagan is one of many examples.  The essay on Barbara and George Bush was also surprising, as the picture that it painted of the 41st President was not particularly consistent with the many profiles about him that appeared in the wake of his recent death.

Of these political writings, I found William’s essay about Bill Clinton and the Monica Lewinsky scandal to be the most thoughtful.  Williams frames her essay by asking why feminists are unwilling to criticize Clinton for his affair with an intern---a question that has gained new prominence in light of the #metoo movement.  Although the essay was clearly written at the time of the scandal, the perspective that Williams brings to the question is so fresh that it could have been written today.

The book is more than just political profiles.  It also contains essays about life and parenthood.  I wish I had an electronic copy of her essay about the magazine “Real Simple”---I’d like to send it to all of my friends who are also parents to small children and talk to them about it over a glass of wine.  (It is, in some ways, a more thoughtful, but less funny, version of the recent SNL skit about family that has been such a big hit with my cohort.)

Not to ruin the ending—but it gets sad at the end.  As I mentioned above, Williams was diagnosed with cancer, and she ultimately died.  The book was edited and published after her death by her husband, Timothy Noah, who is an editor at Politico.  Normally, I don’t like to read anything that is particularly sad.  I don’t like sad movies or television shows either---I like my pleasure reading and watching to serve as a light-hearted diversion from everyday life.  But William’s brings the same thoughtfulness and perspective to her essays about her illness as she does to her essays about politics:  She is writing about cancer, but she is also writing about life, family, and ideas.

Anyway, as I said, the book left a mark.  And so I thought I’d share.

Incorporation and Government Structure

Inspired by this week's SCOTUS oral argument in Timbs v. Indiana, my colleague (and partner in crime) Andy Hessick and one of our talented UNC students, Elizabeth Fisher, wrote the following about incorporation.  I tend to think that they are wrong--especially about the jury trial right--but I'm having a hard time articulating precisely why.  They are looking for input (and I'm looking for help with counterarguments for the dinner table) so I'm posting it here for folks to weigh in with comments.

Earlier this week the Court heard argument in Timbs v. Indiana, which asks whether the Fourteenth Amendment incorporates the Excessive Fines Clause against the states.  Questions for oral argument put the smart money on the Court saying it is incorporated.  If that’s right, then all of the first 8 amendments will be incorporated except for three provisions: the Third Amendment, the right to a jury in civil proceedings, and the right to a grand jury. The reason the Third Amendment is not incorporated is that the Court has never had the opportunity to consider the issue. Third Amendment claims are rare. But the non-incorporation of the other two provisions is harder to explain.

The extent to which the Fourteenth Amendment incorporates rights against the states has been a longstanding question. The text of the Fourteenth Amendment is vague, and the history surrounding its ratification is ambiguous.  Over the years, justices have floated various theories of incorporation.  Some have pressed for total incorporation; others argued for a fundamental-fairness test.  Today, the prevailing doctrine is the so-called “selective incorporation” test under which a right is incorporated if is fundamental or deeply rooted in our nation’s history. This test does not derive from either the text or the history of the Amendment.  Instead, it rests on the two principles of protecting individual rights while trying to avoid unduly constraining the states.

Under this selective incorporation test, incorporating the Excessive Fines Clause seems like a no-brainer. Prohibiting excessive fines is just as fundamental or deeply rooted as many of the other rights the Court has incorporated.  But it is hard to see why the grand jury and civil jury clauses are not incorporated under this test.  They are not obviously less fundamental or deeply rooted in our nation’s history than other guarantees in the Bill of Rights.  The inclusion of those rights in the Bill of Rights alone strongly suggests their importance. But the Court has repeatedly said that those rights are not incorporated, including in the 1970s after the Court started its modern wave of incorporation.

Questions from some of the justices in the Timbs argument suggest that they are prepared to incorporate all of the guarantees in the first 8 amendments based on a total incorporation theory.  But there are reasons not to incorporate the jury rights.  One reason—a reason we are developing in a new paper—is that incorporating these rights would more significantly interfere with the states’ sovereignty than the incorporation of other rights. Most rights impose substantive restrictions. For example, the First Amendment limits the government’s ability to regulate speech.  Other rights require the government to follow particular procedures.  For example, the Due Process Clause requires the government to afford process before depriving individuals of life, liberty, or property.  The grand jury and civil jury clauses do much more.  They require the government to adopt particular structures.  For example, the Seventh Amendment obliges the government to provide juries in common law cases over $20.

Requiring states to adopt government structures significantly intrudes on the states’ prerogative to arrange their own governments. Under the Constitution, states are sovereign except to the extent that the Constitution provides otherwise. An essential feature of sovereignty is the power to arrange government and distribute power among governing bodies.  The Framers deliberately protected that power of the states.  The only limitation they imposed is that states must have republican forms of government, but they left the states vast discretion in structuring their republican governments.  Not incorporating the grand jury and civil jury clauses avoids dictating to the states how to arrange their judiciaries.

Of course, the obvious objection to this structural rights theory is that the Court has incorporated the right to a jury in criminal proceedings.  But it may be that the Court took a wrong turn in incorporating that right.  Certainly, the incorporation of that right has resulted in doctrinal anomalies.  For instance, despite the Court’s insistence that incorporated rights apply in the same way to the state and federal governments, the right to a criminal jury does not apply the same way to the states and the federal government. Among other things, although juries must be unanimous in federal criminal cases, they do not need to be unanimous in state proceedings.  This inconsistency suggests at least some recognition that incorporating the right interferes with the states’ prerogative to operate its judiciary.

The idea is still in nascent form.  We still have much work to do on it, and we’d love any thoughts on it. 

Elected Prosecutors and Non-Prosecution Policies

Rachel Rollins is likely to be the next district attorney in Suffolk County, Massachusetts.  She recently won the democratic primary, and she is not facing a Republican challenger in the general election.  Rollins is a reform-minded candidate, and so her win has caused a bit of a stir.  Rollins is also causing a stir because she recently released a list of crimes that she says she will decline to prosecute if elected.  The list includes larceny under $250, receiving stolen property, disorderly conduct, and other charges.

If you had asked me ten years ago what I thought about a prosecutor making a public announcement about all of the crimes she would not prosecute, I would have been extremely critical.  In particular, I would have said that prosecutors have a duty is to enforce the laws, and policies of non-enforcement conflict with that duty.  Just as decisions about what to criminalize belong to legislatures, I would have said, so too do decriminalization decisions belong to legislatures, not prosecutors.  But having spent time studying the relationship between criminal justice institutions, I am much less critical of Rollins’ announcement.  In particular, I no longer think that decriminalization decisions are reserved for the legislature.

To be clear, my point about decriminalization is a descriptive one, not necessarily a normative one.  Legislatures have—to a significant extent—delegated the scope of criminal law to prosecutors.  Legislatures have done so by writing overly broad criminal laws.  Legislatures write overly broad laws knowing that prosecutors will not prosecute all behavior that falls within the statutory text.  Prosecutors will make their own decisions about the circumstances under which to prosecute crimes.  In other words, prosecutors are free to decide what conduct to treat as legal and what to treat as permissible.  We got a glimpse of that decision-making when James Comey explained to Congress that, even if Hillary Clinton’s behavior fell within the text of a federal criminal statute, it did not meet the criteria that DOJ uses for actually bringing charges in such cases.

The sheer number of crimes also delegates questions about the scope of criminal law to prosecutors.  Resource constraints make it impossible for prosecutors to bring charges against everyone who commits a crime.  As a result, district attorneys have to make decisions about which crimes to prioritize and which crimes to deprioritize.

Some might respond that there is a difference between making enforcement decisions in the context of individual cases and making enforcement decisions ex ante about an entire category of cases.  But I don’t see the appeal of that argument.  The elected district attorney is the individual who has been empowered to make these important decisions.  So one hopes that she is making those decisions in the context of a general office-wide policy, rather than leaving the decision to line prosecutors in individual cases.  Line prosecutors may have different priorities, and case-by-case decisions would doubtlessly lead to inconsistent decisions.

Some might also object that, even if an elected prosecutor has formal policies about what charges not to bring, she should not announce those policies to the public.  If I know, for example, that my district attorney is not going to prosecute larceny of goods under $250, then (so the argument goes) I will feel free to steal items that cost less.  (Meir Dan-Cohen fans will recognize that argument as one of acoustic separation.)

Even assuming that such public announcements decrease deterrence—and I am uncertain whether they do—public announcements have a significant benefits  :  For example, public announcements can help ensure that law enforcement won’t enforce these laws in an arbitrary or discriminatory fashion.  One major problem with overly broad laws or rarely enforced laws is that they can be used as a pretext for racial discrimination or other animus.  In this respect, overly broad laws and rarely enforced laws are similar to vague laws. 

Most importantly, public announcements make prosecutors democratically accountable for their enforcement policies.  Unannounced policies do not allow the public to make informed voting decisions or to give feedback to elected prosecutors about how they have chosen to enforce the criminal laws.  But in announcing this list of crimes, Rollins has ensured some measure of legitimacy and accountability for her decisions. 

I am sure that at least some people will read this post and think that it has failed to fully justify or defend a practice of categorical non-enforcement.  There are very intelligent people who have argued against categorical non-enforcement.   In an ideal world, I would probably agree that legislatures should make all criminalization and decriminalization decisions.  In such a world, legislatures would write narrowly targeted criminal laws and would not criminalize more behavior than the system could reasonably prosecute and punish.  But that is not the world we live in.  Since legislatures have decided to delegate significant questions about the scope of criminal law to prosecutors, prosecutors should answer those questions in a transparent and accountable fashion.  That is what Rachel Rollins has done here.

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.”  The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).”  This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class.  So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students.  And I also think that it is a good idea for schools to hire from a broad array of different law schools.  I’d be happy to defend either of those positions.  But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools?  I haven’t done independent research on the topic, so I can’t say with any authority.  But what I can say is that the evidence offered in this article doesn’t support the proxy argument.  That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t.  In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class.  And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

What appears to be the best data set about socioeconomic status in law schools (a data set that didn’t include family income) supports the idea that people who attend law school tend to have a higher socio-economic status than those who don’t.  And the LawProfBlawg article points to it as support for its claim about law school as a proxy for class.  I’m not in a position to assess the methodology or limitations of that study.  But I can say that the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools.  According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50.

That comparison is important because it shows a serious weakness with the class proxy argument.  The weakness is that a person who attended a school in the top 50 (but not top 10) ranked law schools is *very* likely to have come from a high socio-economic class—in fact, they are nearly as a likely as a student at a top-10 school to have come from money.  So if we are going to assume that someone who went to a top-10 ranked school had a high socioeconomic status, why would we not assume that about someone who went to a school ranked 15?  Or 35?  Or 42?

I’ll admit that I feel somewhat defensive about this topic.  But I want to be very clear about *why* I feel defensive.  I feel defensive because the law school that I went to—although it is at the top of the US News rankings—wasn’t just filled with the children of the super-rich.  (And there is a best-selling book out there right now that seems to say it is.)  And there is some limited information out that that suggests my school—Yale Law School—doesn’t deserve the reputation that this proxy argument seems to assume.  The current dean of the law school recently tweeted some statistics about the incoming class, including that 10% of the class are the first in their family to attend college and that more than a quarter are the first in their family to attend professional school.  And another Yale grad helpfully tweeted some information about an older survey of YLS students reporting that the median family income was not significantly higher than the national median.

Not only does my law school not get the credit that it deserves, but the claim that school is a proxy for class also makes those of us who went to these schools but who didn’t have a lot of money feel kind  of crappy.  As this topic was being discussed on Twitter, I had a few friends reach out to me to tell me how upset they’ve been when people assume that, because they went to Harvard or Yale, that they must have grown up with a lot of money.  They are upset because comments like this suggest to them that people assume that they didn’t have to work hard to get that degree.  And it especially stings because they remember having to eat Ramen or turn down fancy unpaid internships because they didn’t have the money to do otherwise.

This defensiveness is much different than what LawProfBlawg mentions in his article.  The article says:

I also find it a bit amusing that some who tout the need for student diversity often become exceptionally defensive when looking at their own privilege and the need for academic diversity. I’m not suggesting that those of you who are at elite law schools or who have elite law review placements don’t deserve kudos. It is simultaneously possible to accept that you have been benefitted by privilege based on your race, class, or gender and also continue to value your own writing and scholarship and continue to have it valued.

The working class kids who went to these schools didn’t have the benefit of class.  And insisting that we should use alma mater as a proxy for class minimizes or even erases whatever hurdles they faced by not coming from money.

The proxy argument also exacerbates something that I’ve always found unsatisfying about the current discussion surrounding privilege—that it sometimes suggests that only some have truly “earned” their current success.  I’m not sure that any of us can say that we didn’t benefit from something that was external to ourselves.  For example, even though I didn’t grow up with money, I was extremely lucky to have two parents who greatly valued education, lucky to have a high school teacher who encouraged me to apply to Ivy League schools, lucky to have college friends who convinced me to apply to law school, lucky to have a first year law professor who encouraged me to transfer to Yale since I wanted to teach, and insanely lucky to have a partner who is more supportive and understanding than any other human being that I know.  And if I constantly focus that the advantages that others have because they are male or because they grew up with money, it is easy for me to lose sight of all of the advantages that I did have.  There are plenty of people who worked just as hard as I did and were just as smart, but who weren’t as lucky.  And I don’t want to lose sight of the luck that I’ve had and start thinking that I have only myself to thank for whatever I've accomplished.

But perhaps that most troubling thing about the law school proxy argument is that it is trying to tap into innate feelings about fairness when what we need is a more careful and nuanced discussion about law school hiring.  There is no dispute that it is easier for a candidate to get a law teaching job if she has gone to Harvard or Yale than if she’s gone to a school outside of the top 30.  But it’s not entirely clear why it is easier.  If we say that the difference between those candidates is about money, then we automatically assume that the system must be flawed.  But if the socioeconomic status of students from a school ranked #1 and a school ranked #30 aren’t actually all that different, then we need to have a more difficult conversation about why that hiring difference is a problem.  Is it because Harvard and Yale have better networks for their grads?  Is it because they do a better job teaching their students about academic writing?  Or is it some form of discrimination?  It’s not enough to shout “hierarchy” or “elitism”—you need to have a more nuanced discussion.

I’m not saying that a nuanced argument against our current system can’t be made.  In fact, I think it can.  And since we are law professors, I think that we have a pretty serious obligation to have the nuanced discussion.  We shouldn’t let our own preconceived notions about they “types” of students who graduate from these schools dominate.

Socioeconomic class is something that law schools should care about.  But let’s please stop saying that only top 10 law schools have diversity problems when it comes to class.  It simply isn’t true.  And it prevents us from having a better discussion about the issue.

SCOTUS Term: Chavez-Mesa and Sentencing Appeals

Yesterday, Supreme Court decided another federal sentencing case, Chavez-Meza v. United States. In 2013, the defendant pleaded guilty to possession of methamphetamine with the intent to distribute and he was sentenced to 135 months in prison.  That sentence was at the very bottom of the relevant Federal Sentencing Guideline range.  After the defendant’s sentencing, the U.S. Sentencing Commission reduced the relevant sentencing guideline range from 135-168 months to 108-135 months.  The defendant sought a resentencing under the new, lower range.  The judge agreed to lower his range, but imposed a sentence of 114 months, rather than the 108 month sentence the defendant had requested.  The judge did not provide any explanation for the new sentence.  Instead, the judge merely checked a box granting the motion for a sentencing reduction on a form that stated that the judge had considered the defendant’s motion and taking into account the relevant Guideline’s policy statement and statutory sentencing factors.  (A copy of the form can be found at the end of the opinion.)

The defendant was entitled to appeal his new sentence, and he did.  Sentencing decisions are subject to abuse of discretion review on appeal, and so one might wonder how the appellate court was supposed to review the defendant’s sentence without any explanation for the judge’s decision.  As Judge Posner put this point in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)

[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored.

But in a 5-3 decision, the Supreme Court Justices nonetheless affirmed the sentence in this case.  Writing for the majority, Justice Breyer failed to explain how an appellate court is supposed to conduct abuse of discretion review if there is no explanation of a lower court’s decision.  Instead, he pointed to the Court’s decision in a prior case which had affirmed a sentence that was supported by nothing more than the sentencing judge’s statement that the within-Guidelines sentence it imposed was “appropriate.”

I have no doubt that if this sentence had been outside of the Guidelines, then a majority of the Court would have said that an explanation was absolutely required. But instead we see this from the majority:

[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender. Thus, a judge's choice among points on a range will often simply reflect the judge's belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in § 3553(a). Insofar as that is so, it is unsurprising that changing the applicable range may lead a judge to choose a nonproportional point on the new range. We see nothing that favors the one or the other. So, as is true of most Guidelines sentences, the judge need not provide a lengthy explanation if the “context and the record” make clear that the judge had “a reasoned basis” for reducing the defendant's sentence.

I think this may be the most blatant statement from the Court that we need only subject non-Guidelines sentences to appellate review.  Previous decisions had been more circumspect about the idea that within-Guidelines sentences ought to receive essentially no appellate scrutiny.  The Court’s decision to overtly embrace the idea in Chavez-Meza was not accompanied by any real attempt to reconcile differential appellate review with the holding in United States v. Booker, which rendered the Federal Sentencing Guidelines “advisory” in order to protect them from Sixth Amendment challenge.

What is more, the idea that the Federal Sentencing Guidelines represent what most judges think is an appropriate sentence is demonstrably false.  (See pages 1490-91 of this article and pages 6-14 of this article for thorough explanations of why that statement is false.)  As one of the original members of the U.S. Sentencing Commission, Justice Breyer knows that this statement is false.  And he knows that the statement is especially untrue when it comes to sentencing ranges for drug crimes.

Chavez-Meza v. United States is yet another demonstration that the Supreme Court has utterly abandoned appellate review principles in its post-Booker sentencing cases. 

SCOTUS Term: Hughes v. United States and Federal Sentencing

On June 4, the Supreme Court handed down its decision in Hughes v. United States.  Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court.  Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing.  That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.

As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient.  Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes.  This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right.  Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.”  In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.”  Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.

For example, in Peugh v. United States the government had argued that the prohibition on ex post facto laws ought not apply to the advisory federal guidelines.  According to the government, after Booker, federal guidelines “are just one among many persuasive sources a sentencing court can consult, no different from a ‘policy paper.’”  But the Peugh Court rejected this characterization of the guidelines.  It characterized the Guidelines as “framework for sentencing,” and it said that the post-Booker system is “intended to make the Guidelines the lodestone of sentencing” by “impos[ing] a series of requirements on sentencing courts that cabin the exercise of [their sentencing] discretion.”

The Court made a series of pro-Guidelines statements in Molina-Martinez v. United States as well. Specifically it suggested that trial judges need not make an independent judgment about the appropriate sentence, but rather may impose Guideline sentences without reflection.  "District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors."  This language seems inconsistent with a 2009 case, Nelson v. United States, the Supreme Court held that a district court may not presume that a Guidelines sentence is reasonable, but instead court must engage in their own independent balancing of the § 3553(a) factors. 

While Peugh and Molina-Martinez suggest that the Federal Sentencing Guidelines are more than merely “advice,” last Term, the Court suggested the opposite.  In Beckles v. United States, the Court addressed whether the post-Booker Guidelines are subject to challenge under the void-for-vagueness doctrine.  In an opinion by Justice Thomas, the Court said they were not, in part because:

The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they “do not constrain th[at] discretion,” id., at ––––, 133 S.Ct., at 2089 (THOMAS, J., dissenting).

Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.

(You’ll note that Justice Thomas had to rely from language in one of his own dissents for the idea that the “advisory” Guidelines don’t constrain judges’ sentencing discretion.)

I had been waiting to see whether the Court would take that language from Beckles seriously.  Hughes answers that question.  This is Justice Kennedy’s majority opinion in Hughes:

[T]his Court's precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant's sentencing range. Id., at 544, 133 S.Ct. 2072. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U.S., at 544, 133 S.Ct. 2072. And in Molina–Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U.S., at ––––, 136 S.Ct., at 1346.

Not only did Hughes ignore the inconsistency between Peugh/Molina-Martinez and Beckles, it ignored Beckles altogether.  Beckles isn’t mentioned at all in the majority opinion.

One irony of the opinion in Hughes is that it said the decision was necessary to resolve a split in the circuits.  Because the Guidelines exist in order to promote uniformity, the Court did not want inconsistent circuit court decisions to result in non-uniform treatment of defendants who had pleaded guilty.  But the retreat to Peugh/Molina-Martinez and refusal to acknowledge Beckles are symptoms of a bigger problem that has caused far more sentencing inconsistency across the country.  By failing to explain what “advisory” Guidelines actually are, and by making inconsistent statements about the role of the Guidelines at sentencing, the Court has left sentencing law ambiguous.  As a result, there are some circuits that routinely affirm sentences outside the Guidelines, and others that police them closely.  It is ironic that the Court wants to keep some role for the Federal Sentencing Guidelines in order to promote sentencing uniformity, but in failing to explain what that role is, the Court has created pervasive inconsistencies in sentencing law across the country.

In Defense of Law Review Articles

Last week, I had the good fortune to attend a conference on The Future of Legal Scholarship, which was hosted by the Loyola University Chicago Law Journal.  It was a very well organized and well attended conference, at which several law professors spoke about a number of topics related to legal scholarship.  Both in formal remarks, casual conversation at the conference, and the post-conference chatter on Twitter, several law professors criticized the law review article format and submission/acceptance process.  Some of these criticisms were entirely fair.  Anthony Kreis, for example, made a strong case for blind review of all law review article submissions.  But I heard other criticisms that I think are far less defensible.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.  And to say that those ideas ought to be turned into books ignores real differences between books and law review articles.  For one thing, most books owe their length to copious amounts of background material that situates the author’s ideas, rather than the support and defense of substantive arguments.  That additional background materials is necessary in books because most book publishers want authors to write for a non-legal audience, as well as for legal readers.  For another, book authors are not forced to support all of their factual claims with footnotes as they are in law review articles.  Annoying as it may be to write such footnotes, the practice keeps authors honest and the footnotes serve as a useful resource for readers.  Put simply, if I were to turn my 60 page law review article into a book, I would have to make such significant changes to that article, that it would no longer resemble what I’d originally written.

That isn’t to say that some law review articles couldn’t benefit from some editing that condensed their length.  And I am quite glad that we no longer live in a world in which 90 and 100 page articles are the norm.  But that is a far cry from saying that the 50-65 page article genre ought to be abandoned in favor of a significantly shorter one.

A second criticism about law review articles is that the effort we put into them would be better spent writing in other formats that are more likely to be read by the general public.  Eric Segall made this point quite forcefully at the conference when he said that the essays that he has written for mainstream media outlets have had more impact than his law review articles.  Because of the difference in impact, he argued that law schools ought to change their promotion and tenure standards in order to create more incentives for law professors to write shorter pieces aimed at general audiences.

I strongly disagree.  There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces.  Our reputations and egos benefit from publishing an op ed in a national newspaper, appearing on television, and other activities that are aimed at the general public.  We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior.  So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong.

More importantly, a Slate article or an op ed in the Washington Post is no substitute for the time and effort required to write a law review article.  Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side.  In other words, writing a law review article makes you an expert about a particular issue.  To be sure, we can distill our expertise into op eds or commentary.  But if we write essays or op eds that do not significantly draw on that expertise, then we are no different than a pundit.  This country already has a lot of very good legal pundits.  What law professors can add to the public discussion is our expertise.  We should not change our incentives structure so that it encourages more law professor punditry—especially not if that punditry comes at the expense of the development of expertise.

There are plenty of other criticisms of law review articles.  And I may someday write a defense (at least a half-hearted one) about the law review submission/acceptance process.  But for now I’ll simply close by saying that we ought not lose sight of the real strengths of law review articles in our haste to criticize the genre.

Judicial Impartiality at Sentencing

The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case.  Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.

Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:

“Our Constitution does not allow for cruel and unusual punishment," she said. "If it did, I have to say, I might allow what he did to all of these beautiful souls -- these young women in their childhood -- I would allow someone or many people to do to him what he did to others."

This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.

First, let me say that I haven't seen a transcript of the judge's entire remarks, and so I can't say whether the comment might seem to have a different meaning in context. But, at least out of context, the judge is suggesting that prison is not a severe enough penalty for Nassar, and that the judge would be tempted, if she could, to sentence Nassar to be sexually assaulted.  I both understand the feeling that a prison sentence doesn't seem to acknowledge the enormity of what Nassar did (especially given how cavalierly those sentences are handed out nowadays) and think that the judge should not have given voice to her personal revulsion here.

To illustrate why, let me tell you about another judge. My friend used to be a criminal defense attorney in Tennessee. One Tennessee judge he practiced in front of used to always give the maximum sentences in drug cases.  When imposing those sentences, the judge would also give a speech saying that he would give the death penalty for drug dealers if he could.  My friend used to tell the story as a colorful anecdote about Tennessee that would outrage his new Northeaster friends.  We were all outraged by that speech because of course drug dealers shouldn't get the death penalty. And the judge's speech suggests that the maximum sentences he was imposing were based on his idiosyncratically harsh views about drugs.

Now, the difference between that judge and the judge in Nassar's case is that many people actually agree with the idea that prison is too light of a sentence for those who molest kids.  In fact, not too long ago, there was a movement in this country to make child rape a capital crime--a popular movement that was succeeding until the Supreme Court declared it unconstitutional in Kennedy v. Louisiana (2008).

But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence.  This comment suggests Judge Aquilina can't be that neutral arbiter. And that's a problem in every case, including the cases where we couldn't imagine being such an arbiter ourselves.

Now, I’ve made this point about being a “neutral arbiter” on Twitter (in fact, this blog post is drawn from a number of tweets from earlier today), and a number of people disagree.  They’ve noted that, when announcing a sentence, a judge’s role is different than her role at trial; and that at sentencing, a judge is supposed to explain the reasons for her sentence, and that it is completely appropriate for that explanation of sentence to reflect the magnitude and awfulness of a defendant’s crime.  Both of these statements are true, but they don’t necessarily justify Judge Aquilina’s statements here. Just because judges can act differently at sentencing than at trial does not mean that there are no constraints on their sentencing behavior.  This statement happened before all of the sentencing evidence had been submitted, and it goes beyond merely explaining a harsh sentence.

Some have gone even further to say judges are not expected to be impartial overseers at sentencing; instead the judge represents “the people” at sentencing, and it is appropriate for the judge to give voice to “the people’s outrage.”  I disagree. The judge never represents the people in a criminal case; the prosecutor does.  A judge’s duty to act fairly and impartially applies to “all duties of judicial office.”  And, at least taken out of context, I think that Judge Aquilina’s statement fails to be sufficiently impartial.

So, assuming that Judge Aquilina’s statements were insufficiently impartial, what does that mean? It probably does not mean that Nassar will have his sentence reversed on appeal.  Michigan courts have not been particularly hospitable to such claims in the past. And appellate courts are generally loathe to overturn trial judges’ sentencing decisions unless they violated a relevant statute, imposed a sentence based on materially false information, or if the judge based the sentence on the defendant’s race or gender.

It *could* mean that Judge Aquilina will be subject to professional discipline for violating her duty of impartiality.  There are several examples of judge being disciplined on that basis when their sentencing comments were critical of victims or minimized the harm victims suffered.  But I’m not sure that judicial disciplinary committees will have the stomach to impose discipline where the judge’s impartiality favored victims and disadvantaged the defendant. Our current moment seems to be one where judicial leniency prompts backlash, but judicial harshness does not. And I think that asymmetry is troubling.  Impartiality requires fair treatment for both sides, not merely for victims—even victims in a case as horrifying as this one.

Law Professors on Twitter

Like many law professors, I am on Twitter. And like many law professors, I often question whether being on Twitter is a particularly good idea.  Among other things, I enjoy Twitter because it allows me to read the tweets of other law professors and to engage with law professors about their tweets and mine.  But while reading those tweets and having that engagement can be quite enjoyable, it can also be quite the opposite.

In the past few months I have had several conversations with other law professors in which they expressed surprise and disappointment in how other professors have used the Twitter platform.  There are a variety of complaints—some professors use the platform to tweet intemperately about political views, some use it for over-the-top self-promotion, some use it to express legal views far outside of their areas of expertise. One common complaint I have heard—and one that I share—is that law professors use the platform to engage in increasingly confrontational and rude ways with one another.  Professors should always be willing to engage with those who don’t agree with them. And we should always expect our opinions to be challenged.  But Twitter appears to have made the tone of those disagreements much coarser and their occurrence more frequent.

I don’t know how to fix the many problems that Twitter causes in legal discourse. But I’ve drafted a short essay on the topic—which can be found here—and I’d be very grateful for feedback on how to improve the essay.  In the meantime, let’s try to be kinder to each other in 2018.

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions.  In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.

I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.

First, contributions in prosecutorial campaigns are worthy of significant scrutiny.  We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete.  I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule.  Of the races I’ve looked at so far, lawyers represent the largest class of donors.  This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers.  But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA.  Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?

That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest.  Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office.  But I’m not optimistic.  Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not.  Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing.  Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.

To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual.  Among other things, case-by-case explanations could be quite harmful to the individual in question.  As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions.  And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton).  But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute.  DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention. 

Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions.  The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute.  But I’d be surprised if we ever get all of the stories.  And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.

Because of this, I think that it is worth talking about reform in this area.  Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections.  And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues.  If you have any other ideas, feel free to share them in the comments or to email me directly.  My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.

Corpus Linguistics Re-Redux

Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN.  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation.  In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation.  While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question.  Among other things, he said the following:

I disagree with your description of the approach that I (and my co-author) have described. I think corpus linguistics can be a very useful tool for providing information that can be relevant to some of the linguistically oriented questions that the law sometimes asks. I don’t think that it should be used to foreclose consideration of other evidence of meaning. While there may be methodological differences among the very few papers that apply a corpus approach, I disagree with the suggestion that what Justice Lee and I have advocated treats corpus linguistics as more than a tool that can provide useful information when the law asks certain linguistically oriented questions. In short, I don’t believe, and haven’t advocated, corpus linguistics as a “new twist on textualism.”

. . .

I think the dichotomy between, on the one hand, corpus linguistics as an interpretive methodology on par with textualism and purposivism (or even as you characterized it as “a new twist on textualism”), or, on the other hand, corpus linguistics as a source of “marginally” useful information, may not be an accurate way to frame the utility of linguistic corpora for interpretive problems. I think corpus linguistics can be a source of “very” useful information that can provide helpful insight in many cases in which the question that the law poses is a linguistically oriented question. Applications of the ordinary meaning canon are one example. And I don’t think that they are a necessarily “textualist” example. I can’t imagine that there is any jurisdiction in the United States that doesn’t use some variety of the plain or ordinary meaning canon of statutory interpretation, regardless of whether the judges who invoke it are textualists, purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback.

I can’t be sure, but these passages suggest that Mouritsen would like corpus linguistics to be something more than an interpretive tool, but something less than a fully formed theory of interpretation.  But in saying that corpus linguistics ought to be considered “a source of ‘very’ useful information” for *any* method of statutory interpretation, including “purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback,” I find it difficult to understand how Mouritsen sees corpus linguistics as something *less than* a theory of statutory interpretation.  A methodology that ought to be used no matter what your theory of interpretation is bigger than a “tool.” 

To try and get at what, precisely Lee and Mouritsen are trying to accomplish, I asked a question in my last post about whether they think that a frequency analysis is required in statutory interpretation.  Specifically, I asked whether Mouritsen was “backing away from a statement that he and Lee made last month on the Volokh Conspiracy that ‘a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words’”

Mouritsen responded:

[T]hat is not, in fact, what we said. We said: “[A] complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words, the (syntactic, semantic and pragmatic) context of an utterance, its historical usage and the speech community in which it was uttered.” When you take into account each of these factors you may often find that a highly specialized, infrequent sense of a word is the most likely candidate for ordinary meaning. You may find that the context clearly eliminates some or all but one of the senses of the word as possibilities. You may also find that the word or phrase in question has many potential uses in that same context, in which case it is difficult to make the case that any of the potential senses is the ordinary meaning. So the characterization of the approach in your prior post that “if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the ‘ordinary meaning,’” to me doesn’t capture the approach we have outlined in our paper. Yes, I think that the frequency with which a word gets used in a particular way, in a particular syntactic, semantic and (sometimes) pragmatic context that is similar to the legal text in question, in the speech community or linguistic register that is similar to the one of those subject to the statute, and from a similar time frame is a relevant consideration when determining the “ordinary meaning” of the words of a statute. As I noted before, “[t]o the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances.” To the extent you have such evidence, I think it would be useful in resolving the question of ordinary meaning.

Mouritsen is, of course, correct that the sentence he and Lee wrote for the Volokh Conspiracy included more than just frequency as a requirement for ordinary meaning.  I thought I’d sufficiently acknowledged that by putting the period to end my sentence outside of the quotation marks.  But in retrospect I should have indicated the additional text with an “. . .”  

But I’m still left with my original question:  Do Lee and Mouritsen think that a determination of ordinary meaning should *always* include a corpus frequency analysis?  After all, Lee and Mourtisen presented the list of factors with the word “and”—that is to say, suggesting that *each* of the factors is necessary for what they called a “complete theory of ordinary meaning.”  But in his response, Mouritsen talks about frequency as “a relevant consideration” and “useful in resolving the question of ordinary meaning.”  So I’m afraid that I still don’t know whether Mouritsen thinks corpus linguistics is something that judges can consider if they feel like it, or if it is something judges ought to consider in every case (even if it isn’t dispositive).

This is the question I am trying to get at in my post (and to some extent in my paper)—What role do corpus linguists see frequency playing in statutory interpretation? I understand that corpus linguistics do not think that frequency will always tell us the meaning of a statutory term—though as I explain in the paper, if that frequency analysis is used by textualists, it may keep the courts from using other tools I think are better.  But in order to understand corpus linguistics as a legal methodology rather than as a linguistic methodology, it is important to know the precise role that Lee, Mourtisen, and others think that frequency data should play.  Is corpus linguistics a method for determining permissible/possible meanings, simply one tool that could be used to help determine ordinary meaning, or something that judges should always consider when choosing between various possible meanings?  After Mouritsen’s comments on my previous posts, I’m just not sure. I don’t see him saying that corpus linguistics should be used merely to determine possible or permissible meanings.  He thinks it can do more.  But how much more is unclear. 

Next, I want to return to the claim that corpus linguistics is a superior tool for discerning meaning because it is objective and scientific in nature.  In my last post, I took issue with Mouritsen’s statements that corpus linguistics “findings are replicable and falsifiable.”  Mouritsen responds:

You disagree with the characterization that the corpus linguistics approach to ordinary meaning is scientific. You acknowledge that the search that gathers the language data is replicable, but argue that “it is the analysis that matters” and different parties can draw (and have drawn) different conclusions from the same data. I simply don’t agree that the idea that people drawing different conclusions from the same data, or subjectively interpreting objective data, undermines the scientific nature of a corpus-based the inquiry. If we are going to classify as “unscientific” any form of inquiry where two people interpret the same data differently (and even subjectively), then we would have to condemn economics and every social science as “unscientific.” We may, in fact, have to shut down many upper level, theoretical courses in the “hard sciences” where subjective interpretation of data may lead different people to different theoretical conclusions. Disagreement about the interpretation of data is part of what Thomas Kuhn called the “route to normal science.” As I noted in my prior comment, corpus data won't “tell you what to do with th[e] information or whether that information is helpful for resolving certain types of questions. Shared standards, practices, and methods emerge when people in the relevant field start using the tool and start debating where it is useful and where it is not useful (or even harmful).” The fact that two parties look at the same data and interpret the data differently doesn’t render the enterprise unscientific.

I am afraid that I have to object to how my argument is being characterized. My complaint is not that corpus linguistics is unscientific, but rather that the use of the terms “replicable and falsifiable” suggests that the method connotes the same objectivity as an experiment in the hard sciences.  My post said:

I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus *search* is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the *analysis* that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

I don’t think that it is fair to characterize this objection to corpus linguistics as a claim that an enterprise is “unscientific” if “two parties look at the same data and interpret the data differently.”  Instead, my criticism is that while a corpus search is objective and replicable, the frequency analysis itself is highly subjective.  And the subjective nature of the analysis undercuts the promise of corpus linguistics as an objective method for determining ordinary meaning—something that Mouritsen has claimed in the past. 

Let me give an example of how non-objective a frequency analysis can be using the new corpus linguistics paper on the meaning of the word “emoluments” in the Constitution.  In their methodological section, the two authors explicitly note that the analysis of corpus search results is subjective, and thus they realized that they were likely to code results differently. In order to facilitate consistent coding, they practiced: that is to say, they independently coded material and then met to discuss why they had arrived at particular decisions.  After multiple rounds of these practice coding sessions, they were only agreeing on how to code a particular result 70% of the time.  This 30% disagreement rate after several rounds of practice, in my mind, severely undercuts the claim that corpus linguistics frequency determinations are “replicable and falsifiable” findings.

To be fair to Mouritsen, he backs away from the idea that corpus linguistics can tell us when a judge is “transparently wrong.” But he sticks to his guns about the benefits of corpus linguistics.  He says

the corpus data gives some content to these differing conceptions of ordinary meaning. It forces the judges to show their work and gives a transparent account of what each opinion appears to mean by “ordinary meaning.” This is in contrast to what happens when a court fails to explain what they mean by ordinary meaning and merely invokes the canon and it is not what happens when courts simply cite a dictionary (given that dictionaries don’t typically provide information about ordinary meaning and are typically cited, as James Brudney and Lawrence Baum pointed out in their article “Oasis or Mirage,” merely as window dressing).

I am unconvinced that we need corpus linguistics in order to ensure that judges engage with each other and transparently explain why they think a particular term ought to be read to have a particular meaning.  We already see a significant amount of back and forth between judges when they disagree about meaning—far more than we saw in the mid-twentieth century.  So I don’t think that we need corpus results in order for judges to explain their interpretive decisions; we just need a culture of reasoned explanation in judicial opinions. 

But even if Mouritsen is right that corpus linguistics will cause judges to engage with each other more, that does not make corpus linguistics more attractive to me. That is because I don’t think that a dispute over how to interpret frequency results of a corpus search would improve the quality of an interpretive dispute.  For one thing, as I explained at length in my essay , I don’t think that frequency is a good measure or method for determining the ordinary meaning of criminal laws.  For another, (also explained at length in the essay) I think that judges have a significant constitutional role to play in the interpretation of law—at least the criminal law—and that role is likely to be neglected if judges get caught up in how to appropriately categorize and count database results.  And given that corpus linguistics analysis is so subjective, I don’t see what we add to the enterprise by having judges fight about how to analyze the results of a corpus search.  I’d rather they engage directly with the statute and how the scope of the statute affects individual rights.

Although this post is already long enough, let me address some of the comments that Neal Goldfarb made in his response to my paper.  I (of course) agree with Neal that usage is not distinct from meaning, but rather meaning arises from usage.  But while usage is what determines permissible or possible meanings, those who advocate for corpus linguistics in the law go a step further: They tell us that frequency of usage can help us determine the meaning of an otherwise unclear term.  Here is how Neal explains the argument in his blog post on meaning:

It seems reasonable to expect that the higher the frequency with which a particular sense is associated with a particular type of context, the more likely it is that when the word is used in similar contexts in the future will be understood to have the same meaning. In this way of looking at the issue, the corpus data is seen as a rough representation of the input—what people hear and read—that shapes people’s understanding of word meanings.

It is known that the frequencies with which specific patterns and constructions occur has an effect on how language is learned and mentally processed. It doesn’t strike me as a big leap from that to the conclusion that the strength of the association between the use of a word in a particular type of context will depend at least in part on how frequently one encounters that word being used, in that type of context, to express that meaning. Or at least that seems reasonable if the idea of “types of context” can be adequately defined.

I will get to that, but first I need to note that I’m extrapolating from what I know of the literature, not reporting on what it says; I can’t point to any work that has been done on this specific question. Nevertheless, the assumption I’m discussing is, as far as I know, consistent with the fact that frequency effects are so widespread.

Importantly, Neal tells us that the linguistics literature does not speak to the fundamental premise of corpus linguistics and the law—namely, whether the frequency with which a particular word is used a particular way will affect how a listener is likely to understand the term when it appears in a statute.  Neal admits that he is making a leap from the literature and relying on his own common sense, and I sincerely appreciate Neal’s transparency about the assumptions that he is making.  But I will add that the assumptions that Neal makes do not address my concerns about notice.  Simply put, why would we think that frequency data would capture an average citizen’s intuitions about a statute’s meaning, but not a judge’s?

I can guess that Neal would say that my concerns about notice fail to appreciate the difference between interpretation and comprehension—the subject of his first response to my paper.    As he explains in that post “nobody is suggesting that corpus linguistics be used for investigating those kinds of intuitions. The whole purpose of using corpus linguistics is to learn things that aren’t accessible to intuition.”  But here is why I base my critique of corpus linguistics in the criminal law:  The criminal law does care about an average person’s ability to read a statute and articulate what it allows and what it prohibits.  If corpus linguistics is going to give us a different answer to the question “what does this criminal statute prohibit” than the answer we expect, then there are real problems under the Due Process Clause.  That is because one of the fundamental limitations on criminal statutes in modern America is that they must give people sufficient notice about what a particular law covers and what falls outside of it.  If corpus linguistics is valuable precisely because it gives us different answers than our intuition about statutory meaning, then I think it poses a significant threat to the need for notice in the interpretation of criminal laws.

Now maybe Neal and other corpus linguists would like to argue about what the Due Process Clause requires for the interpretation of criminal laws. Maybe they do not think that judges ought to ask how an ordinary citizen is likely to interpret the scope of a criminal statute.  I’d be quite happy to have that discussion.  Frankly, if lawyers, judges, and law professors are going to say that corpus linguistics ought to play a role in statutory interpretation, I think that they need to have these discussions.  We aren’t linguists. Our inquiry is not simply how might we better understand how people use words.  Our inquiry is how should we interpret statutes.  In advocating for the use of corpus linguistics in the law, that is what we need to be most focused on.  We can’t push that question down the road and say that “best practices” will develop over time. 

While I find much to disagree with in what Stephen and Neal have written, I can’t stress enough how much I appreciate them taking the time and effort to respond to my paper and my blog posts.  The engagement has allowed me to better understand and articulate the problems that I see with corpus linguistics and the criminal law. And it represents the best type of scholarly interaction—fair, dispassionate, and substantive.  And because of their helpful and thoughtful comments, I hope to have another post soon about context and corpus linguistics.

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25^th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

More on Corpus Linguistics and the Criminal Law

When people ask me why I became a law professor, I have an endless list of reasons at my disposal: Teaching is an outrageous amount of fun. I get paid to write and think about interesting ideas.  No one ever expects me to wear a pants suit.  But a major reason that I enjoy being a law professor is that I absolutely love to disagree with people.  

So imagine my delight when I saw how many comments my original post on Corpus Linguistics and the Criminal Law received. Not only did many of the commenters engage with my essay, but the commenters included Steven Mouritsen (who wrote the first law review article suggesting that judges conduct corpus linguistics analyses and who has a forthcoming article with Justice Thomas Lee in the Yale Law Journal on the topic), Neal Goldfarb (who runs a blog on Law & Linguistics and who attended the 2107 BYU corpus linguistics symposium), and Brian Slocum (who also attended the BYU conference and whose co-authored paper formed the basis for my essay advocating against the use of corpus linguistics to interpret criminal laws )

The comments are all quite good, and many of them have helped me refine some of my concerns with corpus linguistics.  But I also want to push back against others.

First, the comments appear to reveal a rather stark divide in the corpus linguistics community: While some are pushing corpus linguistics analysis as a new method of statutory interpretation, others are far more modest about what corpus linguistics can provide.  In his comment, Brian Slocum repeated the modest approach that he and his co-author take in their paper.  Neal Goldfarb (who was kind enough to submit multiple comments) said that “corpus linguistics can have a very significant impact on issues of statutory interpretation,” but he says that his use of corpus linguistics in not intended “to remake the theoretical framework of legal interpretation.”

Having read Brian Slocum’s most recent essay, I was already aware that not all scholars who conduct corpus analyses necessarily endorse it as a method of statutory interpretation.  But the comments thread suggested that even corpus linguistics staunchest legal supporters may have a more nuanced view of how the tool is to be employed.  In particular, Steven Mouritsen seemed uncomfortable with my characterization of corpus linguistics as a method of statutory interpretation that treats ordinary meaning as an empirical question and then answers that question with evidence of how frequently a term is used a particular way.  I had read his previous work as suggesting that corpus linguistics was not merely an additional tool that judges might wish to employ (or not, whatever they might wish), but rather as a new method of interpretation—a variation on textualism.  But as I’ve read and re-read his comments, I am actually not so sure that he is backing away from (what I read as) previous methodological arguments.  In particular, his comment includes the following passage:

“I don’t think anyone is advocating (I certainly don’t advocate) merely characterizing the most frequent sense of a word as the ordinary meaning. That would be arbitrary. But corpus linguistics can allow you to examine the way in which a word is used in a given syntactic, semantic, and (sometimes) pragmatic context, in the speech or writing from a given speech community or linguistic register, and from a given time period. To the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances. This is a presumption that I would think should be rebuttable where there is compelling evidence that an alternative sense of the word or phrase was intended. And I don’t advocate (and I don’t think anyone in the pro-corpus camp advocates) foreclosing consideration of other evidence of meaning simply because the corpus data suggests a particular answer.”

It is a little unclear to me whether Mouritsen is backing away from a statement that he and Lee made last month on the Volokh Conspiracy that “a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words” (emphasis mine). I don’t think that he is, because he is saying that the corpus analysis would create a “rebuttable presumption.”  But nonetheless, it would be helpful if he (or perhaps he and Lee) could clarify whether they believe (a) that corpus linguistics searches and analyses ought to routinely be part of statutory interpretation or if their position is simply that corpus linguistics might sometimes be useful, and (b) whether, in addition to adding corpus linguistics data to the “plain meaning” step of textualism, whether they are advocating for any additional interpretive changes. 

Second, I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus search is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the analysis that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

Don’t believe me? Check out the Michigan Supreme Court’s opinions in People v. Harris, 885 N.W.2d 832 (Mich. 2016).  The majority and the dissent come to the precisely opposite conclusions about the “ordinary meaning” of a statutory term based on the same corpus data.  The corpus data does not (at least not as far as I can see) tell us which of the Justices in that case were “transparently wrong.”  At the very least, the Michigan Supreme Court Justices didn't find the matter transparent.

Third, I am still left with my same concerns about notice and accountability that I raised in my original post (and which are fleshed out in more detail in the paper itself). Several commenters pushed back a bit on these concerns.  And I’ll confess that I am quite certain that it is my role as a criminal law professor that makes these concerns so salient for me.  Some commenters suggested that the corpus database is more likely to mimic public intuitions about meaning because the public reads the newspapers and magazines that make up the corpus.  But judges read those very same sources.  Why would the corpus database be an accurate reflection of a non-judge’s linguistic intuition, but not a judge’s intuition?  I don’t disagree with those who say that corpus linguistics databases capture more information about language usage than does a judge’s own status as an English speaker.  But whether the corpus more accurately captures the average person’s linguistic prototypes than does judicial interpretation is an empirical question about which I have seen no real data. 

Mouritsen offers a few responses to my notice concerns.  But I don’t find them very persuasive.  He says he prefers the bean counting approach of corpus linguistics to judicial intuition because intuition has led to cases like Muscarello, which he finds arbitrary.  I agree that Muscarello was wrongly decided.  But we don’t need corpus data to know that the defendant’s interpretation of “carry” was entirely plausible (if not more plausible) and thus he should have benefited from the rule of lenity—Justice Scalia’s dissent did an excellent job of doing just this.  Mourtisen acts as though corpus linguistics is a check on government power because it would have led to a different result in Muscarello, and he also points out that several other cases he has analyzed would have come out in the defendants’ favor.  This approach misunderstands my critique.  I made a structural argument about the separation of powers and how it requires a substantive role for judges in statutory interpretation.  That structural argument derives its force and legitimacy from the Constitution, not whether more cases will be decided in favor of defendants.  The argument is about constitutional design and it is about requiring judges to take responsibility for the substance of their decisions. I do not think it is a coincidence that Justice Breyer took refuge in a dictionary in Muscarello.  He knew that the dissent’s interpretation of the term was more sensible and accepted; but by clothing his holding in “objective” analysis—like using dictionaries—he could avoid responsibility for the consequences of his decision.

Mouritsen does not deny that he is trying to check government power by decreasing the substantive role of judges to use their own judgment in interpreting statutes.  But he is trying to avoid the notice and accountability concerns by claiming that corpus linguistics will lead to better outcomes for defendants.  In particular, he claims that corpus linguistics will lead more judges to conclude that a term is ambiguous and thus requires the rule of lenity.  Maybe that will happen over time.  But I honestly doubt it.  The Michigan Supreme Court split over whether a corpus search supported two inconsistent interpretations—neither side saw ambiguity.  And I find Justice Lee’s decision in State v. Rasabout, 356 P.3d 1258 (Utah 2015), entirely too similar.  He found twelve examples of one meaning of a term and one example of another meaning in a corpus analysis of 81 examples. So 68 out of 81 usages did not clearly fall within one meaning or another.  Did he find that the term was ambiguous?  No.  He went on to further analyze what he admitted were unclear usages in order to try and fit them into one of the two contested meanings in the case.  I find it difficult to read such a corpus analysis and think that Mouritsen is correct that corpus linguistics will result in more findings of ambiguity.  (And, although I’m not a behavioral scientist, I wonder whether the representativeness heuristic tells us that corpus linguistics data is unlikely to lead judges to find ambiguity.  I’d be interested to hear from those who are more familiar with behavioral economics—am I wrong to think that heuristic bears on this issue?)

Finally, let me emphasize that I understand why corpus linguistics is so attractive. Not only does it appeal to our current fascination with big data, but it also taps into dissatisfaction with the current textualist regime.  My critique of corpus linguistics should not be read as a defense of the current approach to interpreting criminal statutes.  I think that judges need to do a better job fulfilling their historical role as gatekeeper for punishment decisions.  As I note in the essay, I advocate for a much more robust rule of lenity and more expanded and consistent clear statement rules.  If these tools were expanded, they could bring about the predictability and objectivity that corpus linguistics appears to offer.  And they would do so while promoting notice and accountability.

Corpus Linguistics and Criminal Law

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

I was fortunate enough to be invited to the 2017 corpus linguistics conference at BYU.  I wasn’t a natural person to invite to the conference—I’m not an expert in statutory interpretation, and my undergraduate degree in linguistics did not prepare me for the sorts of analyses that corpus linguistics requires.  Nonetheless, I was intrigued by the Fed Soc panel, and so I was eager to learn more at the BYU conference.  But as I read the papers for the conference, and as I prepared my remarks as a commentor, I found myself more and more concerned about corpus linguistics as a methodology.  In particular, I found myself concerned about it being used to interpret criminal laws.  Corpus linguistics raised some of the problems that I had confronted in my past research on the void-for-vagueness doctrine, and it touched on many of the issues that I was grappling with in a new project about criminal common law.  After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

As my essay explains, in relying on frequency data, corpus linguistics undermines notice and accountability.  Unless legislators and ordinary citizens were to conduct their own frequency analysis—something that appears far too complex for a non-lawyer, if not a non-linguist, to do—then the public will not know how courts will interpret statutory terms.  And if people do not have advanced notice of the scope of criminal laws, then we may not have fulfilled the promise of due process.  Legislative accountability is also undermined by corpus linguistics.  Legislators could pass laws that will be interpreted differently than their constituents might understand them, and so constituents can’t hold their representatives responsible for their policy choices.

Corpus linguistics also doesn’t solve the problems it sets out to.  There does not appear to be a single, correct way to conduct a database search and analysis.  So corpus linguistics will engender litigation over methodology and dueling expert credentials.  This not only suggests that corpus linguistics cannot fulfill its promise of greater predictability and objectivity.  It also raises questions of judicial accountability.  Judges will be able to skirt responsibility for their interpretations of what is legal or illegal by reframing the question as a dispute over database searches rather than a decision about punishment.

Finally, I worry that corpus linguistics seems so attractive because modern legal thought has rejected the idea that statutory interpretation is anything other than a ministerial task.  Before the rise of textualism no one doubted that judges had a substantive role to play in statutory interpretation—especially the interpretation of criminal laws.  Indeed, the standard separation of powers story that is told about criminal prosecutions is that we have divided the punishment power between three branches in order to protect and maximize individual liberty.  A person will be punished only if the legislature decides to outlaw certain behavior, the executive decides to indict and prosecute a particular individual, and the judiciary agrees that the individual’s conduct falls within the clear legislative language.  When the Constitution was written, judges routinely acted as a normative gatekeeper for punishment, construing statutes narrowly to promote common law values even when the legislature seemed to prefer a broader interpretation.

Don’t get me wrong, I’m not saying that we ought to abandon textualism.  In the essay I offer some thoughts on how to improve statutory interpretation.   But I *am* saying that an interpretive methodology that assumes a judge’s professional judgment is an evil to be avoided in statutory interpretation has no place in the criminal law. Language can never be crystal clear. And I would prefer that the people entrusted with deciding the scope of that language saw their task for the important check on government power that it is, rather than as bean counting. 

If you have any thoughts on the essay, I welcome them, including off line.  My email is [email protected].

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe).  And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues.  Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions. 

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

First, be careful when you offer opinions that are available to the general public.  It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day.  Not so anymore.  Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times.  And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements.  Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.

I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority.  When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion.  And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.

Second, certainty when expressing a legal opinion is rarely warranted.  Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements.  I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation.  I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule.  (I personally find those sorts of opinions a little tedious and somewhat presumptuous.)  But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.

There is real temptation to project certainty.  It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us.  Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite.  But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.

Third, be willing to rethink your opinions and to admit your mistakes.  The law professors that I admire the most are those who have changed their minds.  For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.

Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others.  Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement.   I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive.  It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post.  Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way.  A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.

Fifth, don’t assume that people are acting in bad faith when they give legal opinions.  In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences.  This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable.  That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions. 

We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.)  But we should assume that our colleagues are smart enough and honest enough to have done this themselves.  And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.

There you have it – my five opinions about how to give legal opinions.  I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)

SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court

Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post.  Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter.  All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny.  Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.  

Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion.  Justice Alito’s concurrence included the following paragraph:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong.  It was this paragraph that the Washington Post decided to fact check.  Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”

Oddly, the fact check does not show that this factual claim by Alito is false.  Rather the article claims that it is misleading.  Specifically, the article states:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem, but it is an apples-to-oranges comparison.

As Ed Whelan notes in the National Review, the Washington Post article is quite strange because it refutes a factual claim that Alito didn’t make. The article notes that sex offenders are arrested at the lowest rate for the same crime as compared to people convicted of other crimes.  And it notes that of all previously incarcerated offenders arrested for sex crimes, only 13% were previous sex offenders. But these facts do not refute the narrow factual claims Alito makes in his concurrence.

The real problem that the Post has identified (though expressed poorly) is that Alito’s opinion could be read to endorse an oft-repeated claim that sex offenders pose a unique recidivism risk, making sex offender registries and a host of other post-conviction restrictions justified.  Indeed, in a 2002 opinion, the Supreme Court stated that “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” and referred to the recidivism rate of sex offenders as “frightening and high.”  The Washington Post takes pains to debunk this factual claim, even though it was not included in the Packingham opinion.

I partially share Ed Whelan’s criticism of the Washington Post fact check.  Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate.  And although the Washington Post tells us that there are other facts that appear better calculated to assessing how dangerous sex offenders are, that does not make Alito’s statement inaccurate.

Where Whelan and I part ways is that I nonetheless think this paragraph from Justice Alito’s opinion is misleading, if not false.  The problem with this paragraph is not, as the Washington Post claims, that it cherry picks particular statistics and leaves out other statistics.  It is instead the topic sentence of the paragraph.  The paragraph begins with the claim “Repeat sex offenders pose an especially grave risk to children.” But the facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.

The topic sentence is quite clear—it claims that repeat sex offenders pose a particularly serious risk to children.  But the only fact offered in support of this claim is that previously convicted sex offenders are more likely to be arrested for another sex offense than are individuals who had previously been convicted of a non-sex offense.  But how often prior sex offenders are arrested for subsequent sex offenses tells us next to nothing about the risk that repeat sex offenders pose to children. The data Alito cites on re-arrests tell us nothing about the age of the victims. Nor does information about re-arrests tell us how likely it is that a person who victimizes children was previously convicted of a sex crime. 

But there is data that Alito didn’t cite on both of these questions, and they do not support Justice Alito’s claim. When we look at recidivism data broken down by age of the victim, we do not see a large group of people repeatedly targeting children.  This federal study, for example, shows that although more than 50% of individuals convicted of a sex crime against children had a prior conviction, only 7.3% had a prior conviction for a sex offense against a child. (Look at Table 6.)   This is consistent with recent reporting from Joshua Vaughn of the Carlisle Sentinel.  He reports that in some Pennsylvania counties, 95-100% of all sex crime arrests are for people who are not on the registry, even though police devote as much as 60% of their resources to enforcing registry laws.  These figures flatly contradict Justice Alito’s claim that “Repeat sex offenders pose an especially grave risk to children.”  The serious risk to children appears to be coming from groups other than repeat sex offenders.

Of course, one could argue that Alito limited his claim of “grave risk” to repeat sex offenders.  If we read his claim excluding those previously convicted sex offenders who do not reoffend, then Justice Alito has limited his factual claim in a way that ensures it is accurate—those who have or will reoffend by definition pose a risk of reoffending.  But that seems like a bizarre way to read Justice Alito’s opinion.  The North Carolina law regulated the behavior of all previously convicted sex offenders, not simply those who have or will reoffend.  And if we were supposed to read Justice Alito’s opinion in this tautological way, then I would expect to see this mentioned in the portion of his opinion that discusses whether the law burdens substantially more speech than is necessary” to achieve the government interest.  But that section of his opinion is devoted entirely to the types of websites that the statute covers.

In sum, I think that it is fair to say that Justice Alito makes a misleading, if not false, factual claim in his Packingham concurrence.  But it is not the claim that the Washington Post identifies.

SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel

As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge.  Petitioner was a lawful permanent resident who had been indicted on drug charges.  His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time.  Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation.  Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.

The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance.  There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different.  Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming.  If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.

In a 6-2 decision, the Supreme Court reversed.  In the majority opinion, Chief Justice Roberts explained that the prejudice here was the Petitioner’s forfeiture of the right to trial by pleading guilty. In his dissent, Justice Thomas (joined by Justice Alito) argued that prejudice requires not only a showing that the defendant would have proceeded to trial, but also that the defendant would have been better off going to trial.  Both the majority and the dissent supported their positions with language from the Court’s previous ineffective assistance cases, none of which clearly settled this issue. 

Although I don’t think that the Court’s previous opinions necessarily settled this question, I do think the majority was nonetheless correct.  First, there are good reasons not to make the prejudice standard any more difficult to satisfy than it already is.  As many others have noted, the prejudice prong of ineffective assistance of counsel is notoriously difficult to satisfy.  And there is a reasonable argument to be made that it unfairly limits Sixth Amendment rights to the innocent. 

Second, the dissent’s prejudice standard would have been impossible for most defendants to satisfy.  A defendant who is deciding whether to plead guilty often does so without access to information that may have helped her assess her likelihood of success at trial.  As a result, a defendant who seeks to challenge the effectiveness of plea bargain counsel is unlikely to have access to information that would indicate that she might have prevailed at trial.

Finally, and most importantly, the majority opinion (at least implicitly) acknowledges the importance of the right to a jury trial.  Our criminal justice system is essentially a system of pleas, rather than a system of trials.  Substantive criminal law and criminal procedure are currently designed to ensure that the vast majority of defendants accept a guilty plea rather than insist upon their right to trial.     Implicit in our system of pleas is the idea that ours has become an administrative criminal justice system, more concerned about processing large numbers of defendants rather than ensuring justice through adversarial testing.  I happen to believe that the process of trial has its own value, not only to defendants, but also to society as a whole.  In saying that the deprivation of the proceeding of a jury trial is itself prejudice, the majority lends some support to that view---a view that used to be considered a bedrock principle in this country.

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

Constitutional Powers and Crimes

For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation.  The possible crime here is obstruction of justice.  And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution.  Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation. 

Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive. 

It is well established that government actors can be convicted for inappropriately exercising their governmental powers.  Any government official who performs an official act in exchange for money, for example, has committed bribery, even if it would have been perfectly legal for her to have taken the same official act under other circumstances.

Unlike bribery, an obstruction of justice charge doesn’t require a separate criminal act; there is no quid pro quo.  And so some might think that, because Presidents are allowed to make non-prosecution decisions for any reason, the simple decision not to prosecution can’t be criminal, no matter what the reason.  But this argument goes too far. 

In a number of situations, the courts have recognized that otherwise unlimited discretion can’t be exercised for certain, forbidden reasons.  That is why, for example, the courts are willing to reverse sentences in discretionary sentencing systems if the sentence is based on race or national origin.  The Supreme Court has also repeatedly said that executive decisions whether to prosecute cannot be made for discriminatory reasons, even if charges are otherwise supported by probable cause.

Now, one might respond that obstruction of justice is different than these other examples because it is a legislative limit on executive power, rather than a constitutional limit.  But I’m not sure that’s a particularly good response.  For one thing, no one disputes that Congress has the most obvious constraint on executive power to prosecute: the power to define crimes.  For another, obstruction of justice is one of many laws that place limits on what the President may or may not do.  Bribery is also a legislative limitation, rather than a constitutional limitation.  Maybe there is some clever constitutional argument to be made about limits on Congress’s ability to restrict the executive’s prosecutorial power.  But obstruction of justice isn’t that sort of limit; it is a generally applicable law that forbids all individuals from taking certain actions for certain reasons.

In short, the simple fact that the Constitution assigns a particular power to an individual does not mean that power is unlimited.  To be clear, I am not saying that a sitting President can be prosecuted (though I may offer thoughts on another day on the weaknesses of that OLC memo on the topic).  Nor am I making a statutory claim about whether this President has obstructed justice.  I am simply saying that otherwise unfettered discretion may not be exercised for particular reasons, which leads me to conclude that a sitting President, like any other individual, can obstruct justice.

SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine

One of the decisions that I am eagerly awaiting is Sessions v. Dimaya.  Dimaya, a non-citizen, faced removal under the Immigration and Nationality Act because he had been convicted of an “aggravated felony.” The Immigration and Nationality Act defines “aggravated felony” in part by reference to 18 U.S.C. 16, a criminal statute that provides a number of definitions.  Language in 18 U.S.C. 16 is very similar to language that the Supreme Court held to be unconstitutionally vague in a 2015 case, Johnson v. United States.  As a result of this similarity, the Ninth Circuit (and a couple of others) held that 18 U.S.C. 16 is unconstitutionally vague.

The reason I am so interested in Dimaya is that the Supreme Court’s recent vagueness cases don’t make a whole lot of sense, and I’m hoping that the opinion in Dimaya will bring some clarity to this area of the law.

To be fair to the current Court, vagueness has never been a particularly consistent or well-developed doctrine.  But we have seen two opinions in as many years from the Court that have muddied the water even further.  The first of those decisions was Johnson.  Johnson extended the vagueness doctrine beyond criminal statutes that define crimes to statutes that set punishments.  Previous Supreme Court cases had suggested that the vagueness doctrine did not apply to pure sentencing statutes—a point that the government made in its brief—but the Johnson majority simply extended the doctrine without explaining why.  This lack of explanation is troubling because, as I explained in a recent paper, once you extend the doctrine to sentencing, then many features of the criminal justice system arguably raise due process problems.

The second problematic vagueness decision came earlier this Term in Beckles v. United States.  Beckles involved a challenge to a federal sentencing guideline that included language that was identical to the language that was deemed unconstitutionally vague in Johnson.  But the Beckles Court held that the vagueness doctrine did not extend to the federal sentencing guidelines.  The Beckles decision could be criticized on a number of grounds (fodder, I suppose, for another post), but it also further muddied the water surrounding the vagueness doctrine.  One of the reasons that Beckles Court gave for not allowing vagueness challenges to the federal sentencing guideline was that advisory sentencing guidelines greatly resemble fully discretionary sentencing systems. Because no court has ever held that a system that gives judges no sentencing guidance is impermissibly vague, the Beckles Court concluded that a system that gives some guidance must be acceptable.

While a majority of Justices felt that the discretion given to judges was enough to dismiss the constitutional challenge, this reasoning raises more questions than it answers.  The similarity between advisory guidelines and unfettered sentencing discretion is not obviously a reason to dismiss vagueness challenges.  After all, the Supreme Court has repeatedly held that the danger of arbitrary and discriminatory enforcement created by “unfettered discretion” is the main reason why vague statutes are unconstitutional.  Thus, one would think that the more discretion is present, the more due process scrutiny ought to apply.

Perhaps Dimaya will bring some clarity to the vagueness doctrine.  Or perhaps the Court will dodge the vagueness issue by concluding that, because this challenge arose in the context of an immigration case, the vagueness doctrine does not apply with equal force.  I’m interested to find out.

SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions

The Supreme Court issued four opinions today.  One of those opinions, Esquivel-Quintana v. Sessions, involves what seems like a relatively technical statutory interpretation question.  But behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress---issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.

Esquivel-Quintana involves a section of the Immigration and Nationality Act that identifies a conviction for an “aggravated felony” of “sexual abuse of a minor” as grounds for mandatory removal from the United States.  Petitioner had been convicted under a California statute that prohibits sexual intercourse with a minor who is more than three years younger than the perpetrator.  The law defines a minor as any person under 18.  Petitioner argued that this conviction should not make him eligible for mandatory removal because it does not fall within the “generic federal definition” of sexual abuse of a minor, which requires that the victim be younger than 16.  The unanimous Supreme Court agreed that Petitioner was not subject to mandatory removal, not because his victim was older than 16, but because the California statute would permit a conviction in circumstances even when the victim was 17.

Now, you might be asking yourself “what is a ‘generic federal definition’ of a crime, and where do you find such a definition?”  Those are excellent questions.  And the answers are less than satisfying.  There is no section of the U.S. Code where you can find “generic federal definitions” of crimes.  Instead, the generic definitions are common-law creatures that the courts have created in order to deal with the fact that Congress has written a number of statutes that rely on state-court convictions.  And because states define crimes differently, Congress does not specify which specific state criminal statutes trigger its federal laws.  Nor does Congress define the criminal conduct or elements that trigger the federal laws.  Instead it uses phrases like “sexual abuse of a minor,” leaving it to federal prosecutors and federal courts to sort out which state court convictions qualify and which convictions do not.  And, as you might imagine, sorting these things out is far from easy.  It leads to a lot of circuit splits, and we end up with a number of decisions from the Supreme Court on these types of issues every year.

If you take a step back and think about why Congress is writing such imprecise statutes, you’ll realize that it is because Congress is trying to expand the reach of its laws to capture information from state courts.  In recent decades, the federal criminal law has expanded.  The federal government has sought to regulate not only those people who commit federal crimes, but also those who are convicted of state crimes.  Federal law seeks to deport people who have committed state crimes, it prohibits people from possessing firearms based on state court convictions, and it uses those convictions to drastically increase punishment for people who are convicted of federal crimes.  As the federal government has increased its criminal law role, it has leaned heavily on state court convictions.  But states have written very different criminal laws.  These differences are traceable to the idea that each state faces different problems and has different priorities.  Congress’s decision to try to use those state laws as the scaffold for a nation-wide criminal law not only raises questions whether Congress is usurping the role of the states in shaping criminal law, but it also ignores the messy reality of state law differences.

These laws also highlight the limits of Congress’s power.  It is not easy for Congress to draft and enact legislation.  So it would be next to impossible for Congress to list all of the specific state statutes that it would want to trigger a federal law, and then to continuously pass legislation to update that list as states change their own laws.  But Congress’s decision to use imprecise phrases like “sexual abuse of a minor” raises its own problems.  Two Terms ago, in Johnson v. United States, the Supreme Court held that a portion of one of these federal laws was unconstitutionally vague.  A vagueness challenge to a similar law is pending before the Court right now in Sessions v. Dimaya. 

To be clear, the Supreme Court is not always hostile to federal laws that incorporate state court convictions.  And it often rules for the government in those cases even when a reasonable reading supports a defendant-petitioner.  But at least today we can add Esquivel-Quintana v. Sessions to the list of cases in which the courts have pushed back against these federal laws.

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Years ago, when the legal community was in an uproar about whether the Department of Justice had become too politicized under George W. Bush’s administration, I had the good fortune to attend a panel on the U.S. Attorney firings.  The panel consisted of all of the former U.S. Attorneys who had been fired at the beginning of President Bush’s second term.  One U.S. Attorney said he had been fired for refusing to seek the death penalty in a particular case.  Another said he’d been fired for refusing to move quickly on political corruption charges against Democratic officials.  And a third said that he had been fired for refusing to bring obscenity charges against internet providers.  The prevailing sentiment, both at the panel and also in the press, was that, although the President had the power to fire those U.S. Attorneys, the decision to fire these particular attorneys was inappropriate because it had been done for “political reasons.” 

The panel was fascinating, but I had the same question then that I do now:  If prosecutors, the FBI director, and other executive officials derive their legitimacy from their indirect democratic accountability, then why is it a scandal to fire such an official for “political” reasons.  How do you draw the line between a legitimate “policy” reason and an illegitimate “political” reason? 

Because I apparently do not lack self-confidence, I asked the panelists this question.  And the answer that I got was, essentially, that general policy directives are okay, but any attempt to influence decisions in individual cases are off-limits.  At the time, I thought that this was a satisfying answer.  But now I am not so sure.

When it comes to police and prosecution, policy statements don’t seem to mean very much.  Policy statements, like the charging memos that Attorney Generals regularly disseminate to federal prosecutors, are necessarily general.  And they invariably leave room for professional judgment.  In fact, you might say that the true policies of a prosecutor or law enforcement office can be discovered only by assessing how that professional judgment is employed in different circumstances.  To use one of the examples from the U.S. Attorney firing, it doesn’t tell you much to know that a particular prosecutor supports capital punishment; what you really care about is the circumstances under which he or she will seek the death penalty.

Of course, the news accounts of the interactions between Director Comey and President Trump are not a simple example of law enforcement independence.  Because the investigation at issue involved the President’s own campaign, there are a multitude of other issues at play.  But whatever we take away from the Comey affair, I don’t think it should be a lesson of absolute independence for the Department of Justice.

Joining the Prawfs Community

I am extremely excited to join the Prawfs perma-blogger roster.

I started reading Prawfs in 2005, and I followed it kind of obsessively as I left my clerkship and started a teaching fellowship.  I did my first blogging here as a guest.  And it was the Prawfs community--Danny in particular--that introduced me not only to rigorous scholarship workshops, but also to a great number of people that I now consider to be close friends.

In short, PrawfsBlawg helped shape who I am today.  And I'm absolutely delighted to be a permanent part of the community.