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.
@DavidASuper1