Thursday, June 25, 2020

Can This Administration Absolve Its Friends of Crime?

David Super

     Recent events – the Friday Night Massacres of inspectors general and the U.S. Attorney for the Southern District of New York, the strange sagas of Michael Flynn and Roger Stone, and so much more – have taken me back to an obscure detail from my law school Criminal Process class. 
     We were taught that although the Double Jeopardy Clause ordinarily bars retrial for the same offenses after a defendant’s acquittal, some courts describe an exception for cases “in which judgments of conviction or judgments of acquittal were procured by fraud on the part of the defendant, perpetrated upon the court, which do not amount to or have the effect of the defendant having been put in jeopardy, for the reason that such trial orders and judgments were procured by the defendant's own wrong and fraud, and the law will not allow him to profit by his own fraud”.  The Arkansas Supreme Court quoted a treatise of the day with approval:  “If one procures himself to be prosecuted for an offense which he has committed, thinking to get off with a slight punishment, and to bar any further prosecution carried on in good faith--if the proceeding is really managed by himself, either directly, or through the agency of another – he is, while thus holding his fate in his own hand, in no jeopardy.” 
     This fits well with Double Jeopardy doctrine’s rationale that it is inherently unfair to make someone sweat through jury deliberations a second time:  if the defendant knew that a juror had been bought off, or that the judge stood ready to overturn any guilty verdict, she or he would have little reason to fret.  Other forms of defendant misconduct can vitiate Double Jeopardy protections or other procedural rights, such as cross-examination of opposing witnesses. 
     Our courts have had less occasion to consider the fact-dependent “sham prosecution” principle because the Supreme Court has enthusiastically embraced the “dual sovereignty” doctrine allowing successive prosecutions by federal and state prosecutors (or by prosecutors of two different states).  Thus, when white supremacists acquitted for crimes against civil rights workers during the 1960s were subsequently retried, it was always in federal court, under the “dual sovereignty” doctrine, rather than based on any recognition that their initial trials did not put them in real jeopardy. 
     Akhil Amar and Jonathan Marcus wrote a thoughtful article on the retrial of previously acquitted defendants in the 1995 Columbia Law Review.  Their focus was the acquittal of the four police officers that brutalized Rodney King by an all-white Simi Valley jury, but Trump associates shielded by William Barr’s Justice Department raises some of the same concerns. 
     Where Trump associates violated state laws, they may of course be prosecuted by state officials under the “dual sovereignty” principle.  The usual reticence to have state criminal law examine the conduct of federal officials should not apply as they faced little genuine accountability on the federal level.  For example, causing a harmful or offensive touching of another person is typically a battery; it may be privileged if done for legitimate law enforcement reasons but not if done to lawful, peaceful protesters whose message one dislikes. 
     Even where no state offenses occurred, however, if political officials intervened to try to shield the President’s allies, those allies faced no real jeopardy and should not be immune from prosecution should the Justice Department regain its independence. 
     An analogous principle raises questions about the effect of pardons the President may issue to his associates, especially those who might be in a position to give evidence against him.  The right to repose upon receiving a presidential pardon is important under our Constitution, but surely no more so than the right to repose under the Double Jeopardy Clause.  If the pardon was largely assured from the start, the pardon is more of an extension of the crime than relief from its potential consequences. 
     One could make a similar argument with respect to statutes of limitation that Attorney General Barr’s Department of Justice let expire.  Merely concealing a crime typically does not toll a criminal statute of limitations.  Federal law does, however, deny the protection of a statute of limitations to someone who obstructs their prosecution by becoming a fugitive from justice.  We commonly think of fugitives hopping planes to faraway countries where they have no fear of prosecution.  Favored associates of the President apparently can live in such a country without ever leaving home. 
     Similarly, statutes of limitation may be suspended while evidence is sought from a recalcitrant foreign county.  Here, the government blocking access to evidence is not foreign. 
     Of potentially greater practical import is the law suspending the statute of limitation for “any offense … involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not” while a congressional authorization of the use of force is in effect under the War Powers Resolution.  As long as our soldiers and marines cannot rest, neither can those seeking to defraud our nation.  We know the Administration’s self-serving behavior infected our nation’s diplomacy; it might well have poisoned the country’s war-fighting as well. 
     To be sure, some Trump associates have gone to jail:  the embarrassing Paul Manafort as well as the blabby Rick Gates and Michael Cohen.  Any reconsideration of immunities claimed by Trump associates therefore would depend on specific evidence of intervention by political appointees. 
     I am dubious that any of this will actually happen.  I fear that a President Biden may be in a hurry to declare that “our long national nightmare is over” and that “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial” members of President Trump’s circle.  I believe that would be a mistake:  if the criminal law has any value, surely it must be to disappoint the expectations of the brazen who believed they could offend with impunity.  I also share Mark Tushnet’s fear that, because both criminal investigations and the impeachment process were so severely obstructed, we likely are aware of a much smaller fraction of the wrong-doing that has occurred than we were in previous national scandals:  we cannot weigh the merits of leniency when we know only a slender fraction of what happened.  But I am not a politician. 

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