Tag Archives: Daniel Hemel

The Logan Act: A Derelict Statute Robert Mueller Should Shun

06 Wednesday Dec 2017

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The following post first appeared today as an article on Slate.

The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen to contact agents of a foreign government for the purpose either of influencing that government’s policies in disputes with the United States or of defeating U.S. policies. In a New York Times op-ed piece on Monday, Professors Daniel Hemel and Eric Posner argue that the Logan Act remains good law, despite the fact that no one has ever been successfully prosecuted under it. They contend that former national security advisor Michael Flynn violated it during the transition period by secretly contacting the Russian ambassador and asking that the Russian government not respond sharply to Obama administration sanctions against Russia for meddling in the 2016 election. They suggest that Trump son-in-law and senior advisor Jared Kushner is at risk of being indicted and imprisoned under the Logan Act. And they contend that, if Trump violated the Act, he would be impeachable on that ground.

I agree with the first two points. The Logan Act remains on the books and long disuse does not automatically invalidate it. Likewise, General Flynn did violate the statute. He and the other transition team officials mentioned in Flynn’s plea documents plainly sought to influence the policies of foreign governments or to defeat U.S. policies.

That said, much as I admire Hemel and Posner, they are wrong to think that Special Counsel Robert Mueller should consider indicting anyone under the Logan Act, and equally wrong to think that a Logan Act violation would be a tenable ground for impeaching a president. More importantly, their focus on a statutory obscurity like the Logan Act exemplifies an error a good many Trump opponents are making—fixating on the technical violation of a criminal statute as a basis for impeachment.

As for Mueller, he and his team have two intertwined objectives. The first is to investigate and prosecute crimes connected with Russian interference in the 2016 election. The second objective, unstated in his mandate but equally significant, is to ensure that the results of the investigation will withstand—at least in the eyes of rational observers—the inevitable allegations of political bias. Employing the Logan Act would defeat this crucial second objective.

There are good reasons why the Logan Act has not been successfully invoked in more than 200 years. The primary one is that it is violated routinely and enforcing it would contravene well-established norms of political behavior.

Consider, as but one example, the plethora of private persons and organizations interested in U.S.-Israeli relations. Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel.  Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in “correspondence or intercourse” with official representatives of Israel.

The same could be said of any number of other associations. Many Latino groups oppose current U.S. immigration policy. Does anyone seriously suppose that representatives of such groups should be criminally prosecuted if they met with, say, the Mexican ambassador, and urged the Mexican government to continue opposing Trump’s infamous wall? Amnesty International and Human Rights Watch vigorously opposed the U.S. practice of torture and so-called “extraordinary rendition” during the Iraq War and its aftermath. Should American members of these organizations be prosecuted if they met with representatives of foreign governments urging them, in the words of the Logan Act, to “defeat the measures of the United States.”

Criminal prosecutions for this ordinary form of American political behavior would excite clamorous public objections, invite comparison to efforts by authoritarian regimes like Russia to suppress domestic contact with Western open society groups, and draw immediate constitutional challenge on either First Amendment or overbreadth grounds. The fact that in Flynn’s case the American contacting foreign agents had quasi-official status as a member of a presidential transition team made it rather more likely that the meddling would have some practical effect. But transition contacts with foreign governments, complete with signals of varying degrees of directness about impending policy changes, are hardly unprecedented, even if they are poor form. And it’s hard to see why a member of a transition team should be prosecuted when others never have been.

This is not to say that contacts between members of the Trump team and Russia during the transition period were necessarily innocent. They may end up as components of some criminal charge. But Mueller and his people are not likely to complicate any case they bring by basing it on a controversial and constitutionally doubtful relic like the Logan Act. Doing so would be a gift to those who seek to question the legitimacy of their work. And these guys seem unlikely to score that kind of own goal.

For similar reasons, a Logan Act violation is not a plausible impeachable offense. It is a crime, yes, but, as the Clinton affair taught us, not all crimes are “high crimes and misdemeanors.” Conversely, not all “high crimes and misdemeanors” are violations of the criminal code. For example, James Madison maintained that abuse of the pardon power was impeachable. Edmund Randolph thought the same of receiving foreign emoluments. George Mason, who proposed the phrase “high crimes and misdemeanors,” was most concerned with what he termed “attempts to subvert the constitution.” Speaking generally, an impeachable offense is conduct that is both grave and involves genuine danger to the constitutional order. The danger can arise either if the conduct itself endangers constitutional order—as for example Nixon’s efforts to use intelligence and law enforcement against political enemies—or if the conduct indicates that the president is personally unfit to continue service. A violation of the Logan Act—which has been virtually ignored without consequence for two centuries—just doesn’t cut it.

Of course, if Trump were shown to have “colluded” with the Russians to rig the election and if, in gratitude for the help, he made policy concessions of some sort, either during the transition or later, the concessions could be part of an argument that Trump’s pre-election behavior constituted an impeachable offense.  Founder George Mason observed that corrupting the “electors” – by which he meant members of the Electoral College — would be impeachable.  In the social media age, one could fairly argue that some kinds of cooperation with a foreign power to affect voter decisions is a modern equivalent.  But in such a case, the impeachable offense would be the election meddling in collusion with a hostile power and the giving of the quid pro quo.  Adding the Logan Act into the equation would merely confuse the issue and weaken the case.

The fact that brilliant legal scholars like Hemel and Posner are arguing for reanimation of a legal derelict like the Logan Act seems likely to reinforce two themes regularly advanced by Trump’s defenders—first, that Trump opponents are mining the federal criminal code for nitpicky crimes that can be stretched to cover normal political behavior, and second, the popular misconception that impeachable “high crimes and misdemeanors” must be indictable crimes.

The reality is that, however thorough and professional Mueller’s team may be, they have a limited brief—to investigate the Trump campaign’s involvement with Russian interference in the 2016 election. They are turning up a lot of dodgy behavior, but it is entirely possible, indeed likely, they will never produce indisputable evidence that Trump himself committed the kind of plain, unambiguous crime that people across the political spectrum will accept as an impeachable offense.

Sure, it’s possible that Mueller will find that Vladimir Putin has had leverage over Trump for years, or that the efforts of Trump’s bumbling crew of children, in-laws, and campaign sycophants to cadge Clinton dirt from the Russians rendered Trump subject to Russian blackmail. But face it—that kind of dramatic, unambiguous outcome is improbable. The current wishful obsession with Mueller’s work merely invites crushing disappointment among Trump’s opponents and cries of “I told you so” from his defenders. What’s more, a narrow focus on pre-election conduct in a way that relies on dubious laws like the Logan Act diverts attention away from what ought to be a primary focus of any effort to impeach Trump—his near-daily post-election assaults on the norms of American constitutional order. It is that behavior that makes Trump a constant danger to the Republic. And it was to defend against precisely that kind of danger that the Founders gave us the power to impeach a president.

Frank Bowman

OBSTRUCTION OF JUSTICE: PART ONE – Section 1503 Obstruction

28 Wednesday Jun 2017

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The commentariat is now absorbed with the – frankly premature – question of whether President Trump can commit the crime of “obstruction of justice.” Luminaries such as Eric Posner and Daniel Hemel of the University of Chicago Law School say he can. Alan Dershowitz of Harvard Law School and former House Speaker Newt Gingrich say he can’t.

Posner and Hemel’s analysis in the New York Times is closer to right, but Dershowitz makes an important point and the issue is far more complex than it appears. Sorting it out requires understanding the interaction of substantive criminal law, rules and norms governing prosecutorial discretion, separation of powers doctrine, and the law of impeachment.

In this and subsequent posts, I will walk through each of these issues.

In federal criminal law, the term “obstruction of justice” refers to violations of a number of statutes. The two critical ones for our purposes are 18 United States Code, Section 1503 and 18 United States Code, Section 1512. In this post, I consider several technical points about Section 1503 obstruction. In the next post, I will examine Section 1512 obstruction. In the third post, I will discuss the key to both 1503 and 1512 obstruction – the requirement that the defendant act “corruptly.”

Section 1503 Obstruction:

A violation of Section 1503 occurs if a defendant “corruptly … endeavors to influence, intimidate, or impede any … officer in or of any court of the United States, or … corruptly… influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The last phrase is the so-called “omnibus clause” and has been construed quite broadly by federal courts.

Nonetheless, the statute is subject to several technical limitations not immediately obvious from its text.

First, an obstruction charge may only be brought against a defendant who obstructed a “pending judicial proceeding.” See, e.g., United States v. Neal, 951 F.2d 630 (5th Cir. 1992); United States v. Guzzino, 810 F.2d 687 (7th Cir.), cert. denied, 481 U.S. 1030 (1987); United States v. Capo, 791 F.2d 1054, 1070 (2d Cir. 1986), reh’g granted on other grounds, 817 F.2d 947 (2d Cir. 1987) (en banc); United States v. Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert. denied, 444 U.S. 1020 (1980); United States v. Baker, 494 F.2d 1262, 1265 (6th Cir. 1974).

The term “judicial proceeding” includes cases that have been commenced before judges, and also, critically, grand jury investigations. United States v. Aguilar, 515 U.S. 593 (1995); United States v. Wood, 958 F.2d 963, 975 n. 18 (10th Cir.1992); United States v. Campanale, 518 F.2d 353, 356 (9th Cir. 1975) (per curiam), cert. denied, 423 U.S. 1050 (1976).

Therefore, it would not be obstruction of justice under Section 1503 to interfere with a federal civil investigation that had not yet resulted in a court proceeding or a criminal investigation in which no grand jury had been or ever would be empaneled. That said, any federal criminal investigation will, if successful in securing evidence sufficient to establish probable cause of a federal felony, eventually involve a grand jury, if only because a grand jury indictment is a constitutional prerequisite to a federal felony prosecution. Ex parte Wilson, 114 U.S. 417 (1885). Therefore, in a criminal case where the alleged obstruction occurs before any charges have been filed, the operative question is whether there is a “pending judicial proceeding.”

A judicial proceeding is pending if a grand jury has been empaneled, has been advised of the existence of the investigation at issue, and has issued subpoenas in the matter. United States v. Nelson, 852 F.2d 706 (3d Cir. 1988). Even if Justice Department attorneys have (as they are entitled to do) issued subpoenas under the authority of and returnable to a particular grand jury, but have not yet informed the grand jurors of these actions, a judicial proceeding may be deemed pending for purposes of Section 1503. United States v. Steele, 241 F.3d 302, 305 (3d Cir. 2001); United States v. Simmons, 591 F.2d 206, 209-10 (3d Cir. 1979). Certainly this is true if the prosecutor contemplates presenting evidence produced in response to the subpoena to the grand jury at some future point. Id. at 210; United States v. Nelson, 852 F.2d 706 (3d Cir. 1988).

In sum, the absolute minimum requirement for a Section 1503 obstruction prosecution seems to be that a grand jury was empaneled at the time of the allegedly obstructive behavior and that one or more subpoenas relating to the investigation were issued under that grand jury’s authority.

Second, the Supreme Court holds that under Section 1503, “The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority.” United States v. Aguilar, 515 U.S. 595 (1995). Even when there is a “pending judicial proceeding” in the form of an ongoing grand jury investigation, several courts have said that the defendant must know that a grand jury investigation – as opposed to a general inquiry by, say, the FBI or the IRS — is occurring. United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996) (FBI), United States v. Fassenacht, 332 F.3d 440 (7th Cir. 2003). In addition, courts have held that a defendant must “know that his corrupt actions ‘are likely to affect the … proceeding.’” United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006).

At present (June 2017), the investigation Mr. Trump is suspected of obstructing is the Justice Department’s inquiry into Russian interference in the 2016 election, any collusion by persons associated with the Trump campaign with such interference, and, in particular, General Michael Flynn’s role in those events or other improper connections with foreign powers.  It is unclear from public sources if or when any grand jury became involved in these inquiries.

It is still less clear that Mr. Trump would have been aware of such grand jury proceedings or have harbored an intention to obstruct them, as opposed to entertaining a general notion that he wanted the Russia investigation, which he seems to have conceived as being conducted by the FBI alone, to stop. A court might impute to the President of the United States a basic understanding of the federal criminal process. Or this might be an instance in which Mr. Trump’s fairly transparent ignorance of governmental mechanics could be raised as a defense.