Obstruction of Justice

President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey.  According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn.  In this post I want to briefly examine the legal doctrine of obstruction of justice.

To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell.  That’s the gist behind the constitutional prohibition of ex post facto laws.  Laws with vague terms raise the same danger.  When laws are vague, police and prosecutors can abuse their power and trap people.  And that’s the danger with a catch-all doctrine such as “obstruction of justice.”

“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation.  Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.”  Don’t the courts restrain those abuses?  Yes, sometimes they do.  I’m presently editing a book of Judge Alex Kozinski’s legal opinions.  One case, United States v. Caldwell, touches on this subject.  Here is Judge Kozinski:

Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.

I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law!  When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms.  He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.

The Stealth Fusion Center Data Sharing Bill

The attention of most in Congress, the media, and the privacy rights community has been focused this spring on the looming Foreign Intelligence Surveillance Amendments (FAA) Act Section 702 reauthorization fight, generally for good reasons. However, other expansions of domestic surveillance powers and data sharing are getting far less attention—and one such measure before the House today may dramatically expand the kind of information state and local law enforcement agencies can get from the federal government.

Introduced on April 26 by Rep. John Katko (R-NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to

identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;

If the sound of this makes you feel uncomfortable, it should for several reasons—not the least of which is the last-minute decision by the Obama administration to make more raw (and thus potentially unverified or inaccurate) intelligence from the National Security Agency available to the FBI, and thus other law enforcement agencies the FBI decides need the data.

What makes Katko’s bill—which is coming to the House floor under expedited consideration via a legislative procedure known as “suspension of the rules“—even worse is that it ignores the 2012 findings of a Senate Homeland Security Committee report that found that state fusion centers were at best worthless, and at worse Bill of Rights violation factories.

In the press release on the committee report, then chairman Senator Tom Coburn (R-OK) stated, “It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”

Even Lawyers Have the Right to Earn an Honest Living

An Argentine attorney, Maximiliano Gluzman, completed a master’s in law (LL.M.) at Vanderbilt Law School—including a heavy dose of common-law subjects—but was denied an opportunity to sit for the Tennessee bar, even though nobody disputes that he’s an “obviously a very, very qualified” lawyer (as one of the bar examiners conceded) and “one of the very best students” ever to graduate from his school (as its dean put it). In January 2016, however, new bar rules went into effect that essentially prevent foreign students from sitting for the bar by requiring a J.D. from an American law school.

The case is now before the state supreme court. The Beacon Center, Tennessee’s most prominent free-market advocacy group, has filed a brief supporting Mr. Gluzman, which Cato and the Goldwater Institute have joined. Our brief focuses on the right to earn an honest living going back to Magna Carta.

Indeed, Tennessee was founded out of nothing so much as the pursuit of economic opportunity. The state constitution reflects the special importance of the right to earn a living by embedding it in the “Law of the Land” Clause. This provision traces directly to the Magna Carta, a document itself primarily concerned with property rights and the right to earn a living.

While federal courts tend to provide thin protections to this right under the U.S. Constitution, the Tennessee supreme court has long protected it as a “fundamental” right. Importantly, the Tennessee legislature recently reaffirmed that the right was fundamental in the appropriately named “Right to Earn a Living Act.”

Yet the board of bar examiners concluded that Mr. Gluzman’s education in Argentina and at Vanderbilt was not “substantially equivalent” to a J.D.—discounting the right as somehow inapplicable and missing the significance of the Act as a restatement of longstanding Tennessee constitutional doctrine. Under the doctrine of constitutional avoidance, and out of respect for the importance of the underlying right itself, the “substantial equivalency” rule should be read with lenity.

Although Mr. Gluzman’s sterling educational qualifications are beyond reproach, if it is still unclear whether his education satisfies the state bar, the rule should be read to favor the liberty interest and permit his inclusion. Nor is his exclusion demonstrably necessary to protect the public; the tailored way of assessing Mr. Gluzman’s competency would be to simply allow him to take the exam and settle the matter once and for all. That process would at once follow clearly stated legislative priorities and the constitutional principles that gave rise to the Right to Earn a Living Act.

The Tennessee Supreme Court hears Gluzman v. Tennessee Board of Bar Examiners later this spring.

Leaking From the Top

On Monday, the Washington Post dropped a bombshell, reporting that Donald Trump had shared highly classified “codeword” intelligence—provided by an ally on the condition that it not be more widely disseminated—with Russian officials during their meeting last week.  While administration officials initially issued fierce denials, national security advisor H.R. McMaster, who had himself blasted the story as “false” in a carefully-worded statement, effectively confirmed the key elements of the report at a press briefing Tuesday morning. While McMaster repeatedly insisted that Trump’s decision to share information had been “wholly appropriate,” his remarks (perhaps inadvertently) raised several additional grounds for concern.

First, let’s dispense with the obvious: Classification authority in the United States flows from the president, and so a president is legally entitled to declassify or disclose information as he sees fit, for any reason or no reason at all.  This is a case where that infamous Nixonism—”When the president does it, that means it is not illegal”—actually applies.  Nobody, as far as I can tell, is seriously disputing that.  It’s also true that presidents often choose, for strategic or diplomatic reasons, to share particular pieces of intelligence with foreign governments.  Yet this does not appear to have been a “routine” instance of such sharing, as McMaster sought to characterize it—not by a longshot.

Rather, as NYU law professor Ryan Goodman observes at the Just Security blog, any decision to share such sensitive information would normally be subject to a rigorous interagency process, allowing the originators of the intelligence to assess the equities implicated by disclosure and apprise the White House of the potential consequences.  In this case, McMaster confirmed, the decision appears to have been made on the fly during the course of the discussion—and so necessarily uninformed by any serious analysis of the costs and benefits.  Indeed, McMaster even attempted to allay any concerns that Trump might have compromised “sources and methods” by noting that Trump had not been briefed on the source of the intelligence.  Yet as intelligence officials so frequently remind us in other contexts, sources or methods can sometimes be reverse-engineered from the substance of intelligence. If Trump was not aware of the source, his decision to disclose cannot have factored in either that direct risk of exposure, or the related risk of damaging relations with an ally by sharing sensitive information without seeking permission. Even if he had not been briefed on the details, of course, information shared under such conditions should have been clearly marked  “NOFORN” to indicate that it should not be disseminated to foreign nationals, including allies.  

Defending the Right to Armed Self-Defense in the Tar Heel State

“Why didn’t you run away?” It was this dreaded question, asked of victims of violent crime who chose to defend themselves and kill their attackers rather than turn tail and run to uncertain safety, that “stand your ground” laws were intended to address. We shouldn’t demand that ordinary people be Jason Bourne, constantly aware of the availability and potential risk of any exits to the rooms they’re in, even while under pressure, in order to claim self-defense. That’s why North Carolina passed its own “stand your ground” law in 2011: to prevent someone like Gyrell Lee, who defended himself and his cousin in good-faith reliance on his right to repel force with force, from being treated like a common criminal.

Lee had been celebrating New Year’s Eve at his cousin Jamiel Walker’s home. Several times throughout the night, known troublemaker Quinton Epps showed up with some friends and argued with Walker, becoming increasingly intoxicated and aggressive. At some point Lee, who had completed a concealed-carry class and was familiar with the legal rules surrounding gun use, retrieved his pistol from his car “just in case.”

Epps returned a final time, hurling verbal abuse at Walker in the street while Lee and others tried to de-escalate the situation. Suddenly, Walker punched Epps and Epps responded by grabbing the hood of Walker’s sweatshirt and shooting him in the stomach five times. Lee raised his own gun after the second shot, but didn’t fire out of fear of hitting his cousin. Once Walker was able to pull himself away—he would later be found dead from his wounds in a nearby yard—and Epps lifted his gun towards Lee, Lee fired eight times, killing Epps.

The judge at Lee’s murder trial instructed the jury on Lee’s general right of self-defense, but failed to inform them that a defendant accused of homicide has “no duty to retreat in a place where the defendant has a lawful right to be,” and is entitled to stand his ground. The judge also entirely failed to instruct the jury on Lee’s equal right to use deadly force in the defense of Walker. The jury, originally deadlocked, convicted Lee of second-degree murder.

Trump Use of Intelligence Questioned

Intentionally or otherwise, President Trump continues to make headlines, this time involving allegedly highly sensitive information on ISIS that he shared with senior Russian officials during an Oval Office visit. If, as the Washington Post has alleged, that the information was provided by a U.S. ally in the region and that Trump did not seek the ally’s clearance in advance to share the intelligence with the Russians, it represents potential collateral political damage with said ally. Today, National Security Advisor H.R. McMaster held a press conference clearly designed as a damage control operation, although by admitting that “the president wasn’t even aware of where this information came from” he only reinforced the image of Trump as impulsive and careless.

One thing that is not in question is Trump’s authority to share the data with the Russians. The real question is whether he should’ve done so. 

Recall that it was the Soviet KGB’s successor organization, the FSB, that gave the CIA and the FBI the tip that the Tsarnaev brothers were terrorist-in-the-making two years before the Boston Marathon Bombing. That episode was the exception to the rule and record of America’s dealings with Russian intelligence services, as one CIA veteran of Russian operations noted earlier this year. Trump has made no secret of the fact that he wants to increase counterterrorism cooperation between the United States and Russia, particularly against ISIS. Whether his off-the-cuff intelligence sharing foray with Russian Foreign Minister Lavrov and Russian Ambassador to the U.S. Kislyak was the right way to do it is highly debatable. That it has at least temporarily focused attention away from a genuine ongoing scandal–the “Russiagate” investigation and the timing of the firing of ousted FBI Director James Comey–is beyond dispute. Trump’s Oval Office antics have given the Russians unearned wins on both issues this week.

Sessions’ New Charging Memo

Senator Rand Paul has a column over at CNN, urging Attorney General Jeff Sessions to reconsider his recent memo to federal prosecutors that encourages them to seek serious charges and mandatory minimum sentences.  Here’s an excerpt:

The attorney general’s new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation’s drug epidemic for what it is – a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have.

Read the whole thing.  To put this latest move into some perspective, several points need to be kept in mind.  First, like his earlier crime-fighting memos, this is consistent with what Republican administrations do.  That is, they reverse the executive orders that the Democrats put in place.  Sessions is reversing the policies of Eric Holder and restoring the charging policies that Former Attorney General John Ashcroft had in place.  Second, media reports that Sessions is bringing back the drug war are exaggerated because, as Professor Doug Berman noted, the war never went away under Obama.  Third, Trump and Sessions do not “oversee” the American criminal justice system.  The criminal system is decentralized among the states.  The federal system has been growing but is around 10 percent of the overall system.  So while Sessions gets a lot of attention, most of the action quietly occurs at the state and local level.

That said, Sessions is definitely moving in the wrong direction.  He is a strong proponent of mandatory minimum sentences, which have the effect of transferring power from impartial judges to ambitious prosecutors.  And they are so rigid that they too often lead to injustice–especially in drug cases where the quantity of drugs can be the primary factor instead of a person’s culpability.  Low-level mules get severe sentences for example driving narcotics from one city to another.

Sessions also conflates drug enforcement with the violent crime that is the primary concern of most Americans.  He believes that more drug busts can have a real impact on violent crime.  He is badly mistaken about that.  When the police lock up a rapist or a mugger, that enhances public safety.  Drug busts have little impact.  The street dealers and mules are quickly replaced and the black market trade continues as before.   

Lately, Sessions has been making the observation that drug dealers have to resort to violence to resolve their disputes.  There is truth to that, but that has always been a part of the conservative/libertarian critique of the drug war policy.  During the days of alcohol prohibition, newspapers reported on the “beer wars” in the cities.  After prohibition ended, no beer wars.  We would see the violent crime rate decline if the drug war were to end. 

Senator Paul is right about the need for sentencing reform, but even modest steps in that direction are likely to be opposed by Trump and Sessions.  State and local leaders have to take the lead on criminal justice reform.