Is the Foreign Emoluments Clause only a “Political Question” for Congress?

On Wednesday, Judge Daniels of the Southern District of New York heard arguments in CREW v. Trump, the first Emoluments case, on the Department of Justice’s motion to dismiss. The case is its own self-contained course in constitutional law and civil procedure, covering a dizzyingly broad range of subjects and methods of interpretation. The primary debates so far have been on whether the plaintiffs have standing and on the meaning of the word “emolument.”  

Meanwhile, a secondary question has been in the background: Is the Foreign Emoluments Clause solely a question for Congress, not the courts? If so, it would be a “non-justiciable” political question. This clause has never been addressed in the courts, so it is a new question. I think most observers were surprised that Judge Daniels spent so much time on this possibility and seemed so sympathetic to the argument that his court could dismiss the case by punting it to Congress.

This argument starts with the clause’s text: “No person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” 

(Let me note here that there is a second emoluments clause, prohibiting the federal government or the states from giving the President emoluments, with no exception granted to Congress to consent, so Judge Daniels can’t punt this entire case on the basis of possible congressional consent).

Judge Daniels asked, and I’m paraphrasing here, “Why doesn’t the political question doctrine apply? The clause assigns the power to Congress to consent or not. If the President is taking emoluments from foreign governments, let Congress weigh in.”

CREW’s Deepak Gupta gave a clear answer: “Because that approach would flip the clause on its head. The structure is a clear rule, with exceptions given to Congress. It’s a ban, but Congress can create exceptions to the ban. If you say it is non-justiciable, then you flip the script: you turn it into a broad permission to accept emoluments, unless Congress says no. That’s the opposite of the text and the Framers’ purpose.”

Judge Daniels replied: “Congress has the power to prevent emoluments if it wants to.”

Gupta replied that the default rule is that clauses are justiciable unless they are clearly and fully assigned to another branch, and if there are no manageable rules. He emphasized that the DOJ (through the Office of Legal Counsel) has crafted manageable rules over decades of cases and OLC opinions.

I was struck by Judge Daniels’s resistance to CREW’s arguments. The problem is that this is the first time courts have addressed this clause, so there is no direct precedent to answer this specific question.

However, this Emoluments clause is certainly not the only place in the Constitution that uses a similar structure: a prohibition against some act, but a grant of a power to Congress to make exceptions. In fact there are two other examples in the Article I, Section 10, immediately after the Foreign Emoluments Clause (Art. I, Sec. 9). They are prohibitions on state power with the same language, “without the Consent of Congress.”

Art I, Sec. 10, Clause 2: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

The argument here would be the same: Because Congress can always declare or legislate its non-consent, this clause is a political question for Congress, not a justiciable question for the courts.  In fact, this clause has a double measure for congressional authority, adding that these state laws are “subject to Revision and Controul of the Congress,” so the possibility that this clause is only a “political question” is even stronger than the Foreign Emoluments Clause.  However, I can find about two dozen Supreme Court cases ruling on this clause, treating it as clearly justiciable. See, e.g., Chief Justice John Marshall’s decision in Brown v. Maryland, 25. U.S. 419 (1827).

The next clause is similar. Clause 3: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

It has the same structure: a general prohibition plus an exception for congressional consent. Is this clause nonjusticiable because it is a political question for Congress? The Supreme Court has ruled on tonnage duties under this clause at least a dozen times. It has ruled on the troops provision, and there are countless cases on interstate compacts.

Moreover, the same section that includes the Foreign Emoluments Clause also offers a prohibition on the executive branch, with grant of power to Congress:

Art I, Sec. 9, cl. 7: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Is this clause a political question? Its structure is similar to the Foreign Emoluments Clause: it is a prohibition, unless Congress consents (by passing an appropriations measure). But I have found half a dozen Supreme Court cases that treated the clause as justiciable.

What about Congress’s role in accepting new states?  Art. IV, Sec. 3:

[N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Presumably if California tried to split into two states, perhaps a Democratic Senate decided to seat an extra two Democratic Senators, though a Republican President and a Republican House rejected the creation of a North California and a South California. What if they sent an extra pair of electors to the Electoral College, too?  Surely the courts would have something to say about such shenanigans. This question would be justiciable (though the question of standing would be separate).

For another example, turn to the appointment power in Art II, Sec. 2:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

Let’s say President Obama decided that Congress’s silence on his nomination of Judge Garland to the Supreme Court or his nomination of Elizabeth Warren to head an agency was tantamount to implicit consent. Could these appointments be challenged in court? Surely if Justice Garland tried to rule on a case or if agency head Warren tried to regulate a bank, a plaintiff would have a day in court to challenge the legitimacy of those appointments. The fact that Congress has a role in permitting a president to act does not make its silence establish consent, nor does its potential role make the question non-justiciable.

I should add that this interpretation that silence equals consent would be particularly problematic in our current debates about individuals and their consent, from the domains of contract law and sexual contact.

The bottom line is that the framers drafted several provisions in the Constitution that the structure of a broad prohibition, but also carved out a power for Congress to make exceptions, twice with the exact same language of “without the consent of Congress.” The courts have treated those clauses as justiciable from Chief Justice Marshall through contemporary cases. Thus, the Foreign Emoluments Clause is justiciable, an appropriate and manageable question for the federal courts.

The Iran Deal Revisited

Reports indicate that Trump plans to “de-certify” the Iran deal, which would set in motion steps to reimpose American sanctions on Iran. Regardless of what you think of the Iran regime, isolated sanctions by the U.S. alone, without international cooperation, will be ineffectual. As I wrote in 2015 (and re-posted this February), this is actually the reason why the Iran deal made sense from the beginning: Russia, China, and Germany were preparing to end their participation in sanctions once Iran demonstrated that it was not pursuing a military nuclear program. At that point, the Obama administration had two choices: 1) symbolically support its own sanctions while the rest of the world ended their sanctions and allowed a weak inspection program (result: we make ourselves feel good, but no real world effect on Iran’s nuclear capability); or 2) make a deal to end sanctions for a stronger inspection program (result: taking a political hit from the right, but making a real world impact on Iran’s nuclear capability).

Obama chose #2 wisely. Trump is choosing #1 to score empty political points, in a counterproductive move that could make Iran more dangerous, and would make Iran’s moderates weaker.

Trump SoHo Fraud and Manhattan DA Cyrus Vance: Another reason why electing prosecutors is terrible

Propublica is reporting today that in 2012, New York prosecutors were on the verge of indicting Ivanka and Donald Trump, Jr., for fraud related to inflating numbers to generate sales of Trump SoHo units.  Propublica’s timeline shows how Trump lawyer Marc Kasowitz used large political donations to influence DA Cyrus Vance, and coincidentally Vance thwarted the indictments.

I note that Vance is up for re-election in November 7, 2017 and already won the Democratic nomination unopposed. I would love to know more about his Republican opponent.

Excerpt here:

“In 2010, when the Major Economic Crimes Bureau of the D.A.’s office opened an investigation of the siblings, the Trump Organization had hired several top New York criminal defense lawyers to represent Donald Jr. and Ivanka. These attorneys had met with prosecutors in the bureau several times. They conceded that their clients had made exaggerated claims, but argued that the overstatements didn’t amount to criminal misconduct. Still, the case dragged on. In a meeting with the defense team, Donald Trump, Sr., expressed frustration that the investigation had not been closed. Soon after, his longtime personal lawyer, Marc Kasowitz entered the case.

A view of the Trump SoHo hotel and condominium building. (Drew Angerer/Getty Images)

Kasowitz, who by then had been the elder Donald Trump’s attorney for a decade, is primarily a civil litigator with little experience in criminal matters. But in 2012, Kasowitz donated $25,000 to the reelection campaign of Manhattan District Attorney Cyrus Vance Jr., making Kasowitz one of Vance’s largest donors. Kasowitz decided to bypass the lower level prosecutors and went directly to Vance to ask that the investigation be dropped.

On May 16, 2012, Kasowitz visited Vance’s office at One Hogan Place in downtown Manhattan — a faded edifice made famous by the television show, “Law & Order.” Dan Alonso, the chief assistant district attorney, and Adam Kaufmann, the chief of the investigative division, were also at the meeting, but no one from the Major Economic Crimes Bureau attended. Kasowitz did not introduce any new arguments or facts during his session. He simply repeated the arguments that the other defense lawyers had been making for months.

Ultimately, Vance overruled his own prosecutors. Three months after the meeting, he told them to drop the case. Kasowitz subsequently boasted to colleagues about representing the Trump children, according to two people. He said that the case was “really dangerous,” one person said, and that it was “amazing I got them off.” (Kasowitz denied making such a statement.)

Vance defended his decision. “I did not at the time believe beyond a reasonable doubt that a crime had been committed,” he told us. “I had to make a call and I made the call, and I think I made the right call.”

Just before the 2012 meeting, Vance’s campaign had returned Kasowitz’s $25,000 contribution, in keeping with what Vance describes as standard practice when a donor has a case before his office. Kasowitz “had no influence and his contributions had no influence whatsoever on my decision-making in the case,” Vance said.

But less than six months after the D.A.’s office dropped the case, Kasowitz made an even larger donation to Vance’s campaign, and helped raise more from others — eventually, a total of more than $50,000. After being asked about these donations as part of the reporting for this article — more than four years after the fact — Vance said he now plans to give back Kasowitz’s second contribution, too. “I don’t want the money to be a millstone around anybody’s neck, including the office’s,” he said.






Our correction and apology to Professor Tillman

Today our lawyers sent a letter (linked here) to Judge Daniels acknowledging an error in footnote 82 of our amicus brief in CREW et al., v. Trump.  In addition to correcting this error, we would like to take this opportunity to apologize to Seth Barrett Tillman, to whom this footnote refers.  Although we acted in good faith, we now recognize that we were wrong to cite blog posts criticizing Professor Tillman’s research without undertaking more extensive due diligence to determine whether those criticisms were justified.  On the issue of Hamilton’s signature on the so-called Condensed Report, we now believe that Professor Tillman is likely correct, and his critics—including us—were mistaken.

In addition, we wish to acknowledge that footnote 82 makes several imprecise and unwarranted statements about Professor Tillman’s amicus brief.  First, we wrote that Professor Tillman’s brief “overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material,” when we should simply have observed that, in our judgment, his brief does not clearly identify a key archival manuscript that bears on its thesis.  Second, we wrote that a footnote (fn. 76) in Professor Tillman’s brief “incorrectly described the ASP print as ‘undated’ and ‘unsigned.’”  In fact, Professor Tillman’s footnote did not use the words “ASP print” or “unsigned” but instead characterized the “ASP document” as “undated” and the “document in ASP” as “not signed by Hamilton.”

Finally, we wish to apologize to Professor Tillman for the manner in which we took issue with his findings and arguments in our amicus brief.  Under the circumstances, a more appropriate way to proceed would have been to approach him directly and ask for clarification about his interpretation of the Condensed Report.  Each of us would hope for more generous treatment from another scholar who criticized our own work in this fashion, so it was unfair not show the same level of respect to Professor Tillman.

We regret these errors and extend our apologies to Professor Tillman, whose diligent research we admire. We appreciate his long-standing position on how to interpret the Constitution’s reference to “Office of Profit or Trust under [the United States],” regardless of who is holding the office of President, and we respect his commitment and creativity in pursuing that interpretation. We look forward to continuing to engage the many important historical questions raised by this lawsuit.


Jed Shugerman

John Mikhail

Jack Rakove

Gautham Rao

Simon Stern

An apology to Tillman and Blackman

On Tuesday evening, I received the proposed response by Seth Tillman and Josh Blackman explaining their treatment of the Hamilton “Condensed Letter.” I am writing separately from my co-authors on our amicus brief to offer my appreciation for the hard work by Tillman and Blackman to produce these experts’ reports, and I write to offer them an apology.

I welcome amicus’s introduction of these scholars and their interpretations. I have great respect for their expertise and their analysis. I am satisfied that Tillman and Blackman have provided support for their perspective on these documents. I note that we found the “Condensed Letter” in the archives only six weeks ago, and I will continue to examine it in light of these experts’ reports. There is much more to the arguments about the Emoluments Clauses, and I look forward to engaging them in future briefs.

Most importantly, I offer them a public and personal apology for my public questioning of their claims. I was wrong to suggest that Tillman misused sources, and I was wrong to question his credibility. I take full responsibility for my Aug. 31st blog post, which was my work alone, and solely my error in judgment. Even if my questions were reasonable and posed in good faith, I regret that I did not ask these questions by email to give Tillman an opportunity to respond directly. Tillman is a diligent, creative, intelligent, and learned scholar who deserved more respect than the way I handled these exchanges. I’m sincerely sorry for any trouble or hardship I caused for Mr. Tillman and his family.    

The States Can Trump Trump’s Pardons: State Prosecutions for Money Laundering, Tax Fraud, Hacking Conspiracy, and More

[This piece is cross-posted at Slate and Just Security]


After President Donald Trump pardoned former Sheriff Joe Arpaio, observers feared that the president was just warming up his pardon pen for his inner circle who may be targets of criminal investigations. Many legal experts have said there would be no recourse other than impeachment, but at least these pardoned defendants would lose their 5th Amendment privilege against self-incrimination and, as a result, they’d be forced to testify against Trump in some forum.

Those experts are wrong on both counts. The Trump defendants, if pardoned by the President, do not lose their 5th Amendment privileges, precisely because Presidential pardons affect only federal criminal liability, but not state prosecution.  Based on what we know now, all of these defendants face state prosecution for many of the same alleged acts based upon violations of state criminal law. Individuals pardoned by Trump may thus still claim they cannot be forced to say anything to incriminate themselves and that they remain exposed to criminal prosecutions at the state level.   

Some legal experts have doubted that states have jurisdiction over crimes committed in a federal presidential campaign, but they miss the bigger and longer-term picture of the Russia investigation and they overlook the details of how that collusion likely happened.

I have argued before that in trying to block special counsel Robert Mueller’s investigation, Trump can’t escape the states. If Trump fires Mueller and his team, state attorneys general and state prosecutors can hire them. If Trump succeeds in pardoning the defendants or himself, state prosecutors can step in without violating the rule against double jeopardy because of the legal concept of “dual sovereignty”: the states and the federal government have overlapping but separate sovereignty, and each can bring their own prosecutions for the same acts as long as those acts violate both federal and state law. For example, in the Rodney King case, police officers were found not guilty in California state court, but they were later convicted in federal court for federal crimes that covered the same set of acts.

One major recent development is that Mueller and New York Attorney General Eric Schneiderman are talking and cooperating in their investigations. This legal background of dual sovereignty is what makes this news so important. In this article, I dive into the reasons why. First, I explain that there are complicated state laws about double jeopardy that Trump’s pardons could manipulate, but not if Mueller and state prosecutors coordinate on the timing of state indictments. Second, I provide a list of possible state crimes stemming from the campaign and conspiracy with Russia, ranking the relative strengths of each. Third, I identify some possible legal difficulties with state prosecutions and start to address them.

I. Double jeopardy under state law

Even if the Supreme Court’s interpretation of the 5th Amendment’s double jeopardy clause allows states to follow the feds with their own prosecutions, some states (including New York) have a special statute that can occasionally prevent a state from bringing its own prosecution after a federal prosecution has advanced to trial. In New York, a state statute prohibits separate prosecutions for “two offenses based on the same act or criminal transaction” in many cases, and the statute appears to apply to separate state and federal prosecutions, even though there are several exceptions. Some states have similar statutes (although it seems California does not).

The next question is when “double jeopardy” applies. You don’t need a full trial or conviction to count as a first prosecution. In 1978, the U.S. Supreme Court held that jeopardy attaches once a jury is sworn in (or for a bench trial, when the judge swears in the first witness). Of course those points in time are based on an interpretation of the U.S. Constitution, and states may interpret their statutes applicability differently.

These state statutes raise the possibility that Trump might, intentionally or unintentionally, issue pardons only after federal prosecutions have advanced to a certain stage. It is not hard to imagine his doing so with the defendants in those cases well aware in advance that he plans to pardon them (so they need not plea bargain or cooperate). Such scenarios can be  eliminated if Mueller coordinates with Schneiderman, and if New York prosecutors go first. Then Mueller’s team can coordinate with New York prosecutors to work out a deal for these defendants to cooperate. The same coordination can work with other state prosecutors, as well, because many states may have jurisdiction to prosecute many of the crimes listed in the next section.

II. Possible state crimes

What are the strongest kinds of cases that state prosecutors could bring against Trump’s circle? Let’s begin with the strongest one first and work our way down to the weakest, based on available information of the relevant actors’ behavior.

  1. Tax fraud. Other major Mueller news is that he is working with the IRS, suggesting that the special counsel may already be moving toward tax fraud prosecutions starting with Manafort, and probably Flynn and anyone with unreported income. Considering how many Trump campaign figures may have hidden foreign income, tax fraud cases may be relatively strong and straightforward. The key point here is that if one violates federal tax laws by not reporting income, then they have most likely violated state tax laws as well. In fact, Georgetown Law’s Greg Klass has already wondered if Donald Trump himself may have been violating New York tax laws for a long time in manipulating tax breaks.


  1. Money laundering: Trump entities have been fined repeatedly for lacking money laundering protections and for their involvement in money laundering. There are serious concerns that the Trump Organization may have used real estate deals with Russian oligarchs to launder their assets, and the Trump DOJ’s recent low-ball settlement in a case of Russian money laundering seems suspicious. Deutschebank, the only western bank that continued to loan Trump money, is infamous for its own money laundering links to Russia and former Soviet states. Manafort is reportedly a target of Mueller’s money laundering investigation, and he probably isn’t the only one suspected. Mueller and Schneiderman are reportedly cooperating already in their money laundering investigations into Trump officials.

The U.S. Treasury Department describes three steps to money laundering:

Money laundering is the process of making illegally-gained proceeds (i.e., “dirty money”) appear legal (i.e., “clean”). Typically, it involves three steps: placement, layering, and integration. First, the illegitimate funds are furtively introduced into the legitimate financial system. Then, the money is moved around to create confusion, sometimes by wiring or transferring through numerous accounts. Finally, it is integrated into the financial system through additional transactions until the “dirty money” appears “clean.”

New York state statutes also criminalize money laundering for these steps in Penal Law Art. 470. Trump’s entities cross several state lines, making those states’ laws relevant too.

  1. Conspiracy in Computer Hacking (and Stolen Property): Did any members or affiliates of the Trump campaign solicit or conspire with Russians to hack the DNC computers and Podesta’s emails? Congress has criminalized computer hacking in the Computer Fraud and Abuse Act of 1986. New York has similar criminal statutes for computer tampering (Penal Laws 156.20, 156.25, 156.26, and 156.27, punishable by up to 15 years prison) and computer trespass (Penal Law 156.10, punishable by up to 4 yrs in prison). In June 2016 in Trump Tower, Donald Jr., Manafort, and Kushner met with Russians including the lawyer Natalia Veselnitskaya and Rinat Akhmethshin, a former Soviet counterintelligence officer, who allegedly brought opposition research material that may have been acquired through illegal hacking. Akhmetshin has already testified before a grand jury.

Many states could bring prosecutions for computer hacking, because their jurisdiction can be based on the residence of the victims. If someone conspires in Maryland to murder someone in Virginia, Virginia has jurisdiction based on the victim’s residence. The same is true if someone in New York conspired to hack computers, and the victims were foreseeably in Virginia and Maryland, as well as in many other states. Wild card: States also criminalize the solicitation, possession, receipt, and aiding in the concealment of stolen property, so there may be a basis for treating the theft of valuable personal information and company documents as a kind of stolen property.

  1. Conspiracy to Violate Privacy:

There is already a strong civil lawsuit against the Trump campaign, Cockrum v. Trump for President, for conspiring in the violation of privacy rights through Russian computer hacking and dissemination of emails. It’s important to keep in mind the role of private civil actions (like civil rights and torts claims by victims) in investigating and righting wrongs, but the immediate question is criminal liability. These same privacy allegations could be the basis for criminal enforcement of privacy protections, even though many states like New York have only narrow definitions of privacy violations under criminal law. Because the alleged conspiracy violated the privacy of so many victims in so many states, some states with more robust criminal protections of privacy rights will have jurisdiction.

5. Loan fraud and mortgage fraud. New York criminalizes loan fraud and mortgage fraud. Jared Kushner’s disastrous purchase of 666 5th Avenue for $1.6 billion in 2008 and his desperate effort to refinance it has generated enormous suspicion. One of the many questions: How did Kushner manage to secure a $1.6 billion deal with only $50 million down? All of these transactions and attempted refinancing arrangements raise suspicions of fraud and potentially quid pro quo bribery.

6. Quo Warranto powers: Every state attorney general has the power to investigate “ultra vires” wrongdoing by corporations in their state and to dissolve those corporations, as a modern extension of the English “quo warranto” writ. Delaware and New York can investigate the Trump Organization for emoluments, as the Trump Organization is incorporated in those states. Other states like California have the power to investigate other entities like Trump hotels (as limited liability companies). This power does not itself involve criminal enforcement, but it does empower the states to investigate frauds, which may turn into criminal prosecutions.

7. Witness tampering and obstruction of justice: Trump’s corrupt influence over the Russia investigation not only violates federal law. It also violates New York state law (Penal Law 195.05)  Perhaps a state prosecution for firing Comey is a stretch, but there may be other acts — like the destruction of evidence, witness tampering, or lying to investigators — that would be closer to obstruction in New York affairs or in other states. “Misprision of a felony,” which I have explained in this post is the federal crime that puts the Vice President in jeopardy, may also apply in Virginia, but such a state charge also may be a stretch of a criminal statute that already is obscure and rarely charged.

III. Legal hurdles

Finally, are there any legal obstacles to this approach?  One skeptic, Frank Bowman, suggested that the U.S. Constitution’s Supremacy Clause might be a barrier, but offers no case law to support such a stretched interpretation. The existence of the dual sovereignty doctrine and the precedents of federal and state prosecutions for the same act demonstrate that the Supremacy Clause has not limited these state powers. His questions are more about the politics and traditions of prosecutors, but if Trump is contemplating pardons to thwart justice, prosecutors in many states will have public opinion on their side, and many would find that the traditions of federalism and the rule of law more compelling than a tradition of deference to federal prosecutors. Sometimes federal preemption principles prevent a state from treading into federal territory, but I haven’t seen any evidence that Congress considered preempting state law in these areas.

Finally, there are questions about how state prosecutors can coordinate with federal prosecutors. In past cases of investigating and prosecuting organized crime, state and federal law enforcement often cooperated and coordinated closely. (And there may be ties to organized crime in this investigation). Grand jury testimony, even if it is kept secret from the general public, can be shared by federal prosecutors with state prosecutors. There is a general practice for state prosecutors to defer to federal prosecutors when the offense is primarily a federal one, and conversely, federal prosecutors have a general policy not to bring federal charges after a state has already prosecuted, called the Petite policy. But both sets of practices are based on norms and guidelines, with lots of exceptions.  

In these cases, if there is a question about Trump using federal pardons to impede the investigation, Mueller and Schneiderman (and perhaps other state prosecutors) have good reason to make exceptions here, and have justification for a very unusual step: a state prosecutor bringing the first charges involving the investigation of a U.S. president and his campaign.  

Pence and Obstruction of Justice

On Friday, news broke that Special Counsel Robert Mueller had obtained a draft letter written by President Trump and advisor Stephen Miller explaining Trump’s decision to fire FBI Director Jim Comey. They wrote the letter over the weekend of May 5-7, and then on May 8th, Trump distributed and read the letter to senior officials, including White House Counsel Don McGahn and Vice President Mike Pence. Then the letter was edited, and Trump fired Comey the next day.  On Friday, I suggested on Lawrence O’Donnell’s “The Last Word” on MSNBC that the most significant development was Pence’s potential criminal liability for his role in obstruction of justice (and I emphasize “potential,” because all we have at this stage are allegations in media reports and a lot more questions about the contents of the letter and Pence’s role in revising or editing it).

I have explained in other posts why Trump’s firing of Comey constitutes obstruction of justice under 18 U.S.C. 1512(c)(2), and arguably Sections 1503 and 1505. “(c)Whoever corruptly- (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” 18 USC 1515 defines “official proceeding,” and includes Congress and authorized government agencies. The 2d and 5th Circuits have held that an FBI investigation is an official proceeding (but a 9th Circuit case raises questions about that interpretation). But keep in mind that 1) Congress had already started its investigation (including having Comey testify about the Russia probe), and 2) prosecutors had already obtained grand jury subpoenas in the Flynn caseThese official proceedings had already begun, particularly in the Flynn investigation, which had been the focus of Trump’s questions to Comey in January through April. Firing Comey would impede those official proceedings, and Trump himself more or less confessed to trying to influence and impede the Russia investigation by firing Comey: first on national TV to NBC’s Lester Holt, then in the Oval Office to Kislyak and Lavrov on an official transcript.

In this new post, I explain Vice President Pence’s potential criminal jeopardy for conspiring to obstruct justice, aiding the obstruction of justice, and “misprision of a felony” in concealing the obstruction of justice.

First, I offer an extended quotation from The New York Times describing the events:

The letter, drafted in May, was met with opposition from Donald F. McGahn II, the White House counsel, who believed that its angry, meandering tone was problematic, according to interviews with a dozen administration officials and others briefed on the matter. Among Mr. McGahn’s concerns were references to private conversations the president had with Mr. Comey, including times when the F.B.I. director told Mr. Trump he was not under investigation in the F.B.I.’s continuing Russia inquiry.

Mr. McGahn successfully blocked the president from sending the letter — which Mr. Trump had composed with Stephen Miller, one of the president’s top political advisers — to Mr. Comey. But a copy was given to the deputy attorney general, Rod J. Rosenstein, who then drafted his own letter. Mr. Rosenstein’s letter was ultimately used as the Trump administration’s public rationale for Mr. Comey’s firing, which was that Mr. Comey had mishandled the investigation into Hillary Clinton’s private email server….

The New York Times has not seen a copy of Mr. Trump’s letter — which was drafted at the urging of Mr. Trump during a pivotal weekend in May at the president’s private golf club in Bedminster, N. J. — and it is unclear how much of the letter’s rationale focuses on the Russia investigation…

Mr. Trump ordered Mr. Miller to draft a letter, and dictated his unfettered thoughts. Several people who saw Mr. Miller’s multi-page draft described it as a “screed.”

Mr. Trump was back in Washington on Monday, May 8, when copies of the letter were handed out in the Oval Office to senior officials, including Mr. McGahn and Vice President Mike Pence. Mr. Trump announced that he had decided to fire Mr. Comey, and read aloud from Mr. Miller’s memo.

Some present at the meeting, including Mr. McGahn, were alarmed that the president had decided to fire the F.B.I. director after consulting only Ms. Trump, Mr. Kushner and Mr. Miller. Mr. McGahn began an effort to stop the letter or at least pare it back…

Mr. Rosenstein’s memo arrived at the White House the next day. The lengthy diatribe Mr. Miller had written had been replaced by a simpler rationale — that Mr. Comey should be dismissed because of his handling of the Clinton email investigation. Unlike Mr. Trump’s letter, it made no mention of the times Mr. Comey had told the president he was not under investigation.

Mr. Rosenstein’s memo became the foundation for the terse termination letter that Mr. Trump had an aide attempt to deliver late on the afternoon of May 9 to F.B.I. headquarters in Washington. The White House made one significant revision, adding a point that was personally important to Mr. Trump: “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau,” the letter said.

With those reports in mind, I address Pence’s potential criminal liability for obstruction of justice in terms of conspiracy, aiding and abetting, and misprision of a felony (18 U.S.C. 4).

  1. Conspiracy to obstruct justice and aiding obstruction of justice: If the New York Times account is correct, then Pence read the first draft of the letter, and the letter indeed had conveyed that Trump was focused on the Russia investigation. Pence is a lawyer, so he would be held to a higher standard for understanding the basics of obstruction of justice. And Don McGahn apparently raised his own legal concerns, so there is a strong basis for establishing Pence’s awareness that Trump’s letter may have established Trump’s “corrupt intent” to impede the Russia investigation. If Pence helped to edit and revise the letter, and supported the firing of Comey despite knowing Trump’s intent to obstruct, then he conspired to obstruct justice himself and aided in the obstruction. Conspiracy is covered by 18 USC 371, and aiding and abetting is covered by 18 USC 2. A helpful and concise article on federal conspiracy law, with a discussion of its relation to aiding and abetting is here.

The 9th Circuit has helpfully explained the basics of conspiracy and its relationship to aiding and abetting:

The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate[ ] himself with the venture … participate[ ] in it as something he wish[es] to bring about, and [sought by] his action to make it succeed. By contrast, a classic criminal conspiracy as charged in 18 U.S.C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy. Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F.3d 994, 1006-1007 (9th Cir. 2008)(emphasis in the original).

  1. Misprision of a felony

“Misprision of a felony” is found in 18 U.S.C. 4, right after the “aiding and abetting” and “accessory after the fact” statutes:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Misprision sounds overly broad and seems to create a risk of criminalizing too many omissions. The statutes originated from England in an era without police forces or even public prosecutors, so law and order depended upon the public reporting crimes. The Supreme Court explained in 1980:

Concealment of crime has been condemned throughout our history. . . . Although the term “misprision of felony” now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination . . . the criminal defendant no less than any other citizen is obliged to assist the authorities. See Roberts v. U.S., 445 U.S. 552, 557-58 (1980)

But one should also read Justice Marshall’s dissent concerns about the breadth of misprision and the danger of its aggressive use.  In our modern era, as this need for the public’s participation has lessened and as our concerns for civil liberties have grown, courts have rightly limited the scope of misprision in two important ways:

1) to require active steps, either concrete or verbal, to conceal; and

2) to hold public officials to a higher standard than private individuals.

Misprision convictions are appropriately rare. Prosecutors often rely on conspiracy, aiding or abetting, and/or being an accessory after the fact. But as part of a compromise in a plea bargain, prosecutors will sometimes drop those charges in exchange for a defendant to plead guilty to misprision. Nevertheless, misprision remains in use, and its elements may apply to Pence’s conduct, though we need to know more about his actions and the contents of the first letter.

For this discussion, I chiefly rely on Christopher Mark Cureton’s recent article, “The Past, Present, and Future of 18 U.S.C. Section 4: An Exploration of the Federal Misprision Statute,” 55 Ala. L. Rev. 183 (2003).

The elements of American misprision of felony are that: “(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.” United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988).

Cureton explains that active concealment can be physical or verbal. Courts “almost uniformly” treat physical acts of concealment as sufficient for misprision. Verbal concealment is harder to prove. Mere silence is insufficient to support a conviction for misprision. At the other extreme, knowingly providing the police with completely false information will constitute concealment. In United States v. Hodges,  the underlying offense was a kidnapping in which the defendant misrepresented to FBI agents that he had never seen the kidnapping victim. The court held that lying to authorities about a crime is an act sufficient to constitute concealment. In contrast, making truthful but incomplete statements may not amount to concealment. The Ninth Circuit’s rationale for this is that a partial, truthful disclosure does “not result in any greater concealment of the crime than would” result if the defendant said nothing at all. (citing United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977); United States v. Pittman, 527 F.2d 444, 444-45 (4th Cir. 1975); United States v. Ciambrone, 750 F.2d 1416, 1418 (9th Cir. 1984).

In 1996, prosecutors charged a corporation with misprision of felony for the first time. Daiwa Bank, Ltd. executives had discovered that one of their traders “had lost over $1.1 billion through unauthorized trading in United States government securities” and that the trader then sold other customers’ securities to cover the losses. Daiwa avoided reporting the crime, and instead:

committed numerous crimes in its effort to hide these losses. In particular, DAIWA made extensive false entries in its books and records, prepared and sent false account statements, filed a false report with the Federal Reserve, explored plans to hide the loss permanently by moving it off-shore, secretly replaced the missing $377 million of customer securities, and engaged in a fictitious transfer of $600 million worth of nonexistent securities. (Press Release, U.S. Attorney, Southern District of New York, Announcement of Daiwa Guilty Plea and Sentence (Feb. 28, 1996) (WL 1248 PLI/Corp 197, 245)).

Daiwa pled guilty to misprision of a felony, as well as fifteen other federal felonies, and paid a $340 million dollar fine, the largest ever paid in a criminal case at that time. (Curenton at p. 190).

In this case, if Pence heard the letter, (and perhaps heard McGahn’s concerns), and provided any feedback to editing and revision to conceal the obstructive purpose, and/or provided support for the decision to fire Comey, he provided an affirmative act as part of crime. (These acts could also be part of conspiracy and aiding obstruction).

Moreover, we already know that, on May 10, a day after Trump fired Comey, Pence publicly denied that the Russia investigation factored into the decision (full video here):

Question: “But did the President fire Comey to impede the Russia investigation?”

Pence first answered by saying the Trump “is not under investigation.”

A reporter followed up, “But intelligence officials have said there is an investigation into potential ties between campaign officials and Russia…

Pence: “That was not what this is about.”

A different reporter asked, “What about the president’s dissatisfaction with the Russia probe. Did that play into this, sir?”

“Let me be very clear that the President’s decision to accept the recommendation of the deputy attorney general and the attorney general to remove Director Comey as the head of the FBI was based solely and exclusively on his commitment to the best interest of the American people and to ensuring that the FBI has the trust and confidence of the people of this nation.”

If Pence had read Trump’s letter, and if the letter’s “screed” in fact focused on the Russia investigation, Pence’s answers would be a combination of lies, misrepresentation, and concealment. If the allegations are true, then the combination of Pence’s participation in the letter revision and his lies afterward would constitute the affirmative acts necessary for misprision.

  1. Public officials are held to a higher duty

Historically, courts have held public officials to a higher duty for misprision. Blackstone himself seemed to indicate that English statutes placed higher duties on public officials, relative to private individuals, to report crimes. Blackstone, Commentaries, Vol II, P. 85 See Carl Wilson Mullis III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1113-14 (1974); P.R. Glazebrook, Misprision of Felony: Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 194 (1964). See also Curenton at 191-92.

In fact, in my own research, I have found that federal officials already have a duty under federal regulation to report crimes they have observed. The Code of Federal Regulations includes a section on “Basic Obligations of Public Service”: with a specific duty to disclose not only crimes, but also abuse and corruption: “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

Curenton also suggests that, when the defendant is a public official, misprision should not require even an affirmative act of concealment (Curenton at 191-92):

A better alternative would be to remove the requirement of an affirmative act of concealment when dealing with people in positions of trust, such as government officials. In these situations, requiring an affirmative act makes little sense because such officers are usually already under an affirmative duty to report illegal activities.This change would be consistent with the common law tradition of misprision because the term misprision itself was thought to have been “especially appropriate to the misconduct of public officers.” Further, such an alteration may be advisable because “(p)ublic officers voluntarily seek this special position of trust, and expecting them to report crimes does not place an onerous burden upon them.” Thus, it may be appropriate to not only maintain the current misprision of felony statute that requires affirmative acts of concealment as well as a failure to report, but also to develop a second version that punishes a public figure’s mere failure to report. This same approach could also be used in the corporate realm, where disclosure is an expected and (increasingly) recommended business practice. Curenton at 191-92 (citing Carl Wilson Mullis III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1113-14 (1974); P.R. Glazebrook, Misprision of Felony: Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 194 (1964).

Even if one does not go as far as Cureton’s proposal, the established law and precedents  on misprision would put Pence in legal jeopardy for his combination of affirmative acts of concealment before and after the firing, plus his higher duties of reporting crimes as a public official.

The bottom line:

If the reports are correct that Pence heard Trump read his draft letter, a “screed” emphasizing Comey’s handling of the Russia probe, that he may have participated in feedback or revision to conceal that intent, then Pence is in legal jeopardy for obstruction of justice, either as conspiracy, aiding and abetting, or misprision of a felony.