Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Did Trump Violate Campaign Finance Laws?

Legal experts debate whether payments to kill stories about then-candidate Trump's affairs were undisclosed campaign expenditures.

In today's Washington Post, three prominent DC attorneys representing a range of political viewpoints -- George Conway, Neal Katyal, and Trevor Potter -- argue that President Trump likely violated federal campaign finance laws when he encouraged hush money payments to prevent potentially embarrassing stories about his extra-marital affairs in the final weeks before the 2016 election. Their article begins:

Last week, in their case against Michael Cohen, federal prosecutors in New York filed a sentencing brief concluding that, in committing the felony campaign-finance violations to which he pleaded guilty, Cohen had "acted in coordination with and at the direction of Individual-1," President Trump. And this week, prosecutors revealed that they had obtained an agreement from AMI, the parent company of the National Enquirer, in which AMI admitted that it, too, had made an illegal payment to influence the election. The AMI payment was the product of a meeting in which Trump was in the room with Cohen and AMI President David Pecker.

This all suggests Trump could become a target of a very serious criminal campaign finance investigation. In response, Trump has offered up three defenses. His first was to repeatedly lie. For quite some time, he flatly denied knowledge about the $130,000 payment to Stormy Daniels. But now he seems to be acknowledging that he knew (since his personal company reimbursed Cohen for the payment, he ought to). Now Trump and his acolytes have turned to two other excuses: They point to an earlier case involving former senator John Edwards to argue that what Trump did wasn't a crime; and they say, even if it was a crime, it wasn't a biggie — there are lots of crimes, so what, who cares.

The former is a very weak legal argument, and the latter a dangerous one. Indeed, the campaign finance violations here are among the most important ever in the history of this nation — given the razor-thin win by Trump and the timing of the crimes, they very well may have swung a presidential election.

As they note, the last time a federal court was faced with similar questions -- during the prosecution of John Edwards over alleged campaign finance violations related to the payoff of his mistress Rielle Hunter - the court accepted the legal theory that such payments could constitute campaign expenditures if made for the purpose of influencing a campaign. They also express justified dismay at the arguments, made in some circles, that it doesn't matter whether Trump violated the law because he has partisan opponents -- as if that is legally relevant or could somehow excuse otherwise illegal conduct. They conclude:

The bad arguments being floated in Trump's defense are emblematic of a deterioration in respect for the rule of law in this country. The three of us have deep political differences, but we are united in the view that our country comes first and our political parties second. And chief among the values of our country is its commitment to the rule of law. No one, whether a senator or a president, should pretend America is something less.

UC Irvine law professor Rick Hasen agrees that the case against Trump appears to be significantly stronger than that against Edwards. He writes:

Everyone knew that Edwards was on trial for having donors make payments to his mistress to help fund his campaign. This put Trump and everyone else on fair notice that federal prosecutors were treating such payments as reportable campaign expenditures in certain circumstances. Trump even tweeted about the case at the time. At the very least, the Edwards precedent should have caused Trump to seek advice of counsel on whether payments made to hush up mistresses timed specifically to help his election campaign were illegal.

Not only is the legal theory against Trump stronger because of the Edwards precedent; the facts of the Trump case appear much stronger than the Edwards case as well. Here there appears to be both testimony of Cohen and people from AMI (the National Enquirer parent company) who have said that they coordinated with Trump to make the payments in order to help Trump's election chances. There was no corroboration for Edwards but apparently plenty for Trump. And there's great evidence of consciousness of guilt: the use of the LLC and AMI to launder the payments; the denial for more than a year that the payments were made; the disguising of the reimbursements to Cohen from the Trump Organization as payments for legal services and technical services. This is no paperwork error like Obama or McCain made.

Trump of course would have the ability to show at any trial that he did not have the willfulness required for this to become a criminal matter, but it looks like there is plenty of evidence there to give the issue to a jury. The timing of the Daniels payment is particularly damning in proving this was campaign related and not primarily about helping Trump's personal life. Cohen and Trump refused to pay off Stormy Daniels until October 25, 2016, just before the election and after the release of the "Access Hollywood" tape, when Daniels had threatened to give an interview to a media outlet about their sexual encounter.

Not all legal experts are convinced the payments to Stormy Daniels and Karen McDougal constitute campaign expenditures under federal law. Former FEC Chairman Bradley Smith, for example, argues that such payments are simply not the sort of expenditures covered by current law. Back in August, he made this argument in the Washington Post:

regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that "contribution" and "expenditure" aredefined in the Federal Election Campaign Act as anything "for the purpose of influencing any election," and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to "influence an election," from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech.

That's why another part of the statute defines "personal use" as any expenditure "used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign." These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate. . . .

Yes, those payments were unseemly, but unseemliness doesn't make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a "campaign expense" or a personal expense. In such circumstances, we would not usually expect prosecutors to charge the individuals with a "knowing and willful" violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.

The ultimate arbiter of this question may be Congress, rather than the courts, as it is exceedingly unlikely that Trump will ever be indicted for these alleged crimes. instead, these are questions to be considered if and when Congress opens an impeachment inquiry.

Fourth Circuit Rejects Libel Claims over Misleading Edits in Katie Couric's "Under the Gun"

The "questionable" "editing choices," the court said, weren't sufficiently injurious to reputation to qualify as libelous (whether or not they conveyed a false message).

From yesterday's Fourth Circuit decision in Virginia Citizens Defense League v. Couric, the facts:

... In 2016, journalist Couric and filmmaker Soechtig released a documentary titled Under the Gun. The documentary concerns gun policy in America, and it takes a perspective favoring regulation. Couric narrated the film, interviewed participants, and served as an executive producer....

Although the film advocates for gun control, its creators assertedly sought to present viewpoints from organizations that opposed measures like universal background checks. To that end, a producer employed by Atlas Films contacted the Virginia Citizens Defense League ("VCDL"), a non-profit gun-rights organization, and set up an interview with members of the VCDL. Nine members, including Hawes and Webb, agreed to participate.

The final cut of the film includes portions of Couric's interview with these VCDL members. The segment lasts just over three minutes.... [T]his suit centers on a twelve-second clip at the close of the three-minute VCDL interview. In it, Couric asks the following question: "If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?" Approximately nine seconds of silence follow, during which the VCDL members, including Webb, a gun store owner, and Hawes, an attorney, sit in silence and shift uncomfortably in their seats, averting their eyes. The film cuts to a revolver chamber closing. Couric then says: "The background check is considered the first line of defense, and 90% of Americans agree it's a good thing." ...

Although the film accurately portrays most of the interview with VCDL members, the twelve-second clip described above did not transpire as depicted. In the unedited footage, Couric's background check question prompted approximately six minutes of responses from the VCDL members. Hawes responded by suggesting that the government cannot, consistent with the Constitution, prevent crimes through prior restraint. Webb commented that background checks are unlikely to prevent motivated criminals from obtaining guns or committing crimes. These responses were followed by approximately three minutes of related discussion between Couric and the panel. Rather than use these responses, the filmmakers spliced in b-roll footage taken prior to the interview in which Couric asked the VCDL interviewees to sit in silence while technicians calibrated the recording equipment.

Shortly after the film's showing at various film festivals, the VCDL released unedited audio of the interview. In the public backlash that followed, Couric issued a statement admitting that the edited version of the film did "not accurately represent [the VCDL members'] response" and that the segment was "misleading." Believing the misleading segment to be defamatory, the VCDL and two of its featured members, Hawes and Webb, brought this action. The district court dismissed their complaint for failure to state a claim, reasoning that the film was neither false nor defamatory and that, as to claims brought by the VCDL, the film was not "of and concerning" the organization. This appeal followed....

For a harsh but, I think, accurate critique by Washington Post media critic Erik Wemple, see here; an excerpt:

Moments ago, the film's people released this statement from Soechtig: "There are a wide range of views expressed in the film. My intention was to provide a pause for the viewer to have a moment to consider this important question before presenting the facts on Americans' opinions on background checks. I never intended to make anyone look bad and I apologize if anyone felt that way."

Here the Erik Wemple Blog stroke our gray beard and reflect: In the years we've covered and watched media organizations, we've scarcely seen a thinner, more weaselly excuse than the one in the block above. For starters, it appears to count as an admission that this segment of the documentary was edited. The artistic "pause" provides the viewer not a "moment to consider this important question"; it provides viewers a moment to lower their estimation of gun owners. That's it....

But, to be libelous, it's not enough that a statement is false (or, in some situations, carry a false implication); as the Fourth Circuit correctly notes,

To state a claim for defamation under Virginia law, a plaintiff must plead ... [among other things, that the statement is] "both false and defamatory." ... "Defamatory words are those 'tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" The Supreme Court of Virginia has held that actionable defamatory language is that which "tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous." ...

Applying Virginia law, a court "must decide as a threshold matter of law whether a statement is reasonably capable of defamatory meaning before allowing the matter to be presented to a finder of fact." This "reasonable capability" test recognizes that defamatory meaning is often implied....

Plaintiffs argued that the video "can reasonably be understood to suggest that a person is unfit in his or her trade," which is generally seen as particularly likely to "so harm the reputation of another" as to be legally defamatory; but the Fourth Circuit said no:


Have Republicans Been Engaging in "Asymmetric Constitutional Hardball"?

Hardball, yes. Asymmetric, not so much.

In this essay in the Columbia Law Review, Professors Joseph Fishin and David Pozen argue that while "constitutional hardball" has generally increased, for the most part Republicans have been the aggressors and the Democrats quiescent.

In my response, I demur. Here is the abstract:

This Response addresses Professors Joseph Fishkin and David Pozen's Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in "asymmetric constitutional hardball" since 1993. This Response accepts the authors' contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.

Part I questions whether one of the authors' primary examples of Republican constitutional hardball—government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other—supports the authors' thesis, especially given that the shutdowns could at least as easily be blamed on the Presidents as on Congress.

Part II highlights important examples of Democratic constitu­tional hardball, especially hardball by the Obama Administration, that are omitted from the authors' analysis. Part II also briefly reviews reasons why Democrats have been increasingly inclined toward constitutional hardball.

Part III discusses in some detail a particularly important example of Obama Administration constitutional hardball—its efforts to reach and implement, over significant opposition in Congress, a nuclear agreement with Iran. These efforts circumvented Congress and involved lying to the public, engaging in legally aggressive lifting of sanctions on Iran, and even spying on the agreement's domestic opponents.

Among other contributions I think my response makes, I believe it goes into more detail about the "constitutional hardball" the Obama administration played regarding the Iran deal than any other single article. Anyone who still believes that the Obama administration was a paragon of truth and the rule of law should address how it negotiated, sold to the public, and implemented the deal.

"Free Speech Rules," My New YouTube Video Series -- Episode 1 (Speech in Schools) Now Out

Please share it widely -- there will be at least nine more in the upcoming months.

Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at, I'm putting together a series of short, graphical YouTube videos -- 10 episodes to start with -- explaining free speech law. We hope that they will be accessible to everyone, though we're particularly interested in reaching students (from elementary school on up). And the first video, "7 Things You Should Know About Free Speech in Schools," is now out!

We'd love it if you

  1. Watched this.
  2. Shared this widely.
  3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
  4. Gave us feedback on the style of the presentation, since we're always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at

Future videos in the series will likely include most of these, plus maybe some others:

  • Fake news.
  • Alexander Hamilton: free press pioneer.
  • Free speech at college.
  • Hate speech.
  • Free speech on the Internet.
  • Money and speech / corporations and speech.
  • Speech and privacy.
  • Who owns your life story?

The YouTube playlist link is here; future videos will be posted there as well. Thanks also to Prof. Joel Gora, for suggesting the title, and Prof. Mark Lemley, for letting me borrow his "This isn't legal advice / if it were legal advice, it would be followed by a bill" line.

Court Sets Aside USC Student's Expulsion for Alleged Rape

USC's procedures didn't fairly treat the accused, a California appellate court rules.

From Tuesday's California Court of Appeal decision in Doe v. USC, one of several recent California appellate cases reaffirming student due process rights (which, under California law, apply in some measure even at private universities):

John Doe appeals from the trial court's denial of his petition for a writ of administrative mandamus to set aside his expulsion from the University of Southern California (USC) for unauthorized alcohol use, sexual misconduct, sexual assault, and rape.

USC student Jane Roe submitted a complaint to USC alleging John had sexually assaulted her in Jane's apartment after they both attended a "paint" party, at which the students splattered paint on each other. Dr. Kegan Allee, the Title IX investigator, who served as the investigator and adjudicator of the complaint pursuant to USC's administrative guidelines, found by a preponderance of the evidence John knew or should have known Jane was too drunk to consent to sexual activity. In addition, Dr. Allee concluded even if Jane had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by Jane and another student.

John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane's apartment after the sexual encounter—one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct what happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.

Because Dr. Allee's investigative report and adjudication turned on witness credibility, Dr. Allee should have interviewed all critical witnesses in person or by videoconference to allow her to observe the students during the interview. This was especially important here where there were inconsistencies in the testimony and a dispute over whether the substances observed in Jane's apartment after the sexual encounter were blood or paint from the paint party.

In addition, USC did not comply with its own procedures to conduct a fair and thorough investigation by failing to request that Jane provide her clothes from the morning of the incident and her consent to release her medical records from the rape treatment center....

[Finally], as part of the adjudicator's assessment of credibility, an accused student must have the opportunity indirectly to question the complainant. (UC Santa Barbara, supra, 28 Cal.App.5th at p. 60 [accused student was deprived of right to cross-examine complainant and to present his defense where committee allowed her to refuse to answer questions about the side effects of an antidepressant medication she was taking at the time of the alleged sexual assault on privacy grounds]; Claremont McKenna, supra, 25 Cal.App.5th at p. 1057 [college should have required complainant to appear at hearing in person or by videoconference to allow "the Committee[] [to ask] her appropriate questions proposed by John or the Committee itself"]; Cincinnati, supra, 872 F.3d at p. 406 [accused student had a right to question the complainant through the review committee where the committee had to decide whether to believe the complainant or accused student].) USC's procedures do not provide an accused student the right to submit a list of questions to ask the complainant, nor was John given that opportunity here. If USC proceeds with a new disciplinary proceeding, it should afford John an opportunity to submit a list of questions to ask Jane....

The judgment is reversed and the matter remanded to the trial court with directions to grant John's writ of administrative mandamus....

The opinion is by Judge Gail Ruderman Feuer, who was just appointed to the Court of Appeal by Governor Brown, and, as it happens, is the wife of L.A. City Attorney Mike Feuer (just a fun tidbit; the City wasn't at all involved here, of course). Thanks to Bruce Wessel for the pointer.

Unconstitutional "Hate Speech" Prosecution in New York

"[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus."

[UPDATE, Dec. 13, 10:40 am: A article reports -- alone among the sources I've seen -- that "The posters carry a song line 'Don't be stupid, be a smarty/Come and join the Nazi Party' from Mel Brooks' movie 'The Producers.' The 1967 satirical film, later turned into a stage musical, is about a washed-up Broadway producer who seeks to cheat investors with a dreadful play that will bomb; too bad for him that the politically incorrect 'Springtime for Hitler: A Gay Romp with Adolf and Eva at Berchtesgaden' is a success." If that's so, then this suggests that this might have been a joke gone awry by Hassard, who is apparently involved in theater; but, as I discuss below, the prosecution is unconstitutional in any event. Thanks to commenter Naaman Brown for noting this possibility; if others have more details on what the posters actually said, please let me know.] [FURTHER UPDATE, Dec. 13, 2:06 pm: The News12 Westchester video supports the description, and includes an image of the flyer, screen-captured below; as Naaman Brown notes, "The cityscape behind Hitler and below the Nazi flag looks pretty grim. It's hard to tell but it could even be bombed out. And there's a smiley face peeping out behind Hitler's head. With the line from Mel Brooks' The Producers 'Don't be stupid, be a smarty! Come and join the Nazi Party!' that makes one weird pro-nazi poster."]

The Westchester County D.A.'s office announced:

[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus....

On Sunday evening Dec. 8, 2018, during the Jewish celebration of Hanukkah, the felony complaint alleges that 18-year-old Gunnar Hassard of Oneonta, NY, and a student at SUNY Purchase, hung multiple posters, which incorporated a swastika and symbols of Nazi Germany, on and near the Humanities Building.

The complaint states that the defendant posted multiple flyers on the campus "frequented and utilized by members of the Jewish community ... causing alarm, fear and annoyance to the members of the campus community during the Jewish holiday of Hanukkah."

New York State University Police arrested Hassard and charged him with Aggravated Harassment, a hate crime which specifically states a person is guilty of this crime when one "Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property."

As readers might gather, I have only contempt for neo-Nazis. But the statutory provision to which the D.A.'s office is referring, N.Y. Penal Law 240.31, is unconstitutional. The relevant part of the statute reads,

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:

Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property.

And that impermissibly singles out a particular message based on its content and even its viewpoint, which is unconstitutional under R.A.V. v. City of St. Paul (1992) (and Virginia v. Black (2003)).

Now the government can generally criminalize the posting of all signs on private property without the owner's permission. It could likewise criminalize the posting of all such signs on government property; and the government as landlord can even set up rules that impose content-based but viewpoint-neutral constraints on what is posted on its property. (SUNY, for instance, can probably bar the posting of signs that contain vulgarities, even though the government can't generally criminalize vulgar speech.) But it can't target for special criminal punishment racist signs, or anti-government signs, or signs critical of various religious, sexual orientations, or what have you. Just as R.A.V. held that a ban on racist "fighting words" is unconstitutional even if a ban on "fighting words" generally is constitutional, so a ban on unauthorized signs that display a swastika is unconstitutional even if a ban on unauthorized signs generally is not.

Nor does the requirement that the speech be intended to "harass, annoy ... or alarm" change the analysis. I don't think that general bans on publicly posted speech intended to harass, annoy, or alarm are constitutional, see People v. Golb (N.Y. 2014) and People v. Marquan M. (2014); but even if they were, they again can't single out swastikas.

A ban that is limited to "true threats" of violence would be constitutional, and it's possible that a ban on true threats that use swastikas would be constitutional, too, by analogy to the ban on true threats consisting of cross-burning that was upheld in Virginia v. Black (2003); the theory would be that swastikas are especially threatening, so a law banning threatening swastikas just focused on the most dangerous subset of the forbidden category. But this statute is not limited to true threats ("intent to ... threaten" is only a part of it), and there seems to be nothing in the press release or the news stories I've read that suggests that the swastikas were indeed true threats of violence. (Of course, seeing a swastika displayed can create some degree of generalized menace, but that's not enough to allow its prohibition, as Black held for cross-burning as well, where there's no specific threat.)

Swastikas are constitutionally protected, just as are hammers and sickles or burning crosses or images of Chairman Mao or other symbols of murderous regimes and ideologies. Public speech intended to "harass, annoy ... or alarm" groups of people (whether Jews or conservative Christians or blacks or whites) is constitutionally protected. Posting things on other people's buildings isn't protected, but the law can't single out the posting of particular viewpoints for special punishment. And true threats of violence are unprotected, but the statute isn't limited to them, and I've seen no evidence of a specific true threat here.

Finally, a public university can't expel or otherwise discipline a student because he expresses pro-Nazi messages, though he can be disciplined for posting materials in places where such posting is not allowed -- so long as others who post materials with other viewpoints in those places are disciplined for such posting as well.

UPDATE: I've just gotten and uploaded the criminal complaint, which gives no details on the flyers but also includes no evidence (other than the boilerplate "intent to harass, annoy, threaten or alarm" language) that the flyers were threatening.

The Ninth Circuit's Activist Midwinter Meeting

The liberal-dominated federal court of appeals lets its partisan and ideological freak flags fly.

A friend passed along the schedule for the federal Ninth Circuit Court of Appeals official 2019 mid-winter meeting. Among other things, the meeting includes both a keynote speech and a breakout session featuring the ACLU's deputy legal director, a session run by transgender activists, and a panel featuring a discussion of hate speech, offensive speech and "triggering" speech. The range of academic perspectives featured at the conference ranges from the very liberal Robert Post to the very liberal Erwin Chemerinsky. The keynote address is about Confederate monuments, a hot issue on the activist left but literally rather far afield for the West Coast-based Ninth Circuit. There's even a panel on Russian cyberattacks on U.S. government institutions. Given the context of the Mueller investigation, it's hard to see this entirely as a response to concern about potential targeting of the judiciary.

None of these panels would be particularly noteworthy as one panel among a host of ideologically neutral or balanced panels more directly related to the Ninth Circuit's work. But altogether the agenda reads more like the agenda of an activist organization than a federal judicial institution.

The Ninth Circuit has the right to run its meetings however it chooses, I doubt that federal judges are prone to be swayed by presentations at their meetings, and I wouldn't see a problem if this was the agenda of a private organization that invited judges to attend such a conference. Moreover, it was probably only a handful of Ninth Circuit judges who had a role in planning this event in cooperation with the Federal Judicial Center. But as VC readers are undoubtedly aware, President Trump has engaged in a series of unseemly and generally unwarranted attacks on the partisan neutrality of the judiciary. This is a poor time for the Ninth Circuit to be giving his ilk ammunition.

UPDATE: Compare and contrast the Tenth Circuit's most recent conference.

Plaintiff Can't Seal Case He Brought Against Ex-Employer

"Protection against the possibility of future adverse impact on employment does not overcome the presumption of public access."

In Badinelli v. Tuxedo Club, 2018 WL 6411275 (S.D.N.Y. Dec. 6, 2018), plaintiff sued his ex-employer for breach of contract, retaliation, and age discrimination; the parties eventually settled the case. But then plaintiff sought to seal the case. Defendant didn't oppose the motion to seal, but Judge Vincent Briccetti rejected it nonetheless:

[P]laintiff seeks to seal this case's entire record, including the complaint and papers submitted in support and opposition to a motion to compel arbitration and dismiss or stay. Plaintiff's motion thus seeks to seal judicial documents entitled to the right of public access [such as complaints and decisions on motions to compel arbitration]....

Plaintiff argues his interest in privacy, professional reputation, and earning capacity outweigh the interest in public access to the record.

The Court is not persuaded. Protection against the possibility of future adverse impact on employment does not overcome the presumption of public access. See, e.g., Bernsten v. O'Reilly, 307 F. Supp. 3d at 169 (citing Alexandria Real Estate Equities, Inc. v. Fair, 2011 WL 6015646, at *3). Moreover, plaintiff presumably considered the possibility of future adverse impact when he chose to commence the case in federal court. If he did not, he should have, especially since he had an arbitration agreement with defendant and therefore could have brought the case in arbitration rather than in a judicial forum....

Finally, the Court notes plaintiff's motion to seal is largely based on a desire to remove information from the Internet. But at the very least the Court's decision compelling arbitration is a "matter[ ] of public record appearing not only on the docket of this Court and in search engine results, but ... also published in law reporters. Accordingly, the Court's sealing of its Decisions and Orders on the docket, and even directing search engines to remove them, would be pointless if done to remove public information about them." Ferrand v. Lyonnais, 106 F. Supp. 3d 452, 455 (S.D.N.Y. 2015) (internal citations omitted); see also Badinelli v. The Tuxedo Club, 183 F. Supp. 3d 450 (S.D.N.Y. 2016).

Accordingly, plaintiff fails to make a sufficient showing to overcome the common law presumption of access. Thus, the Court need not analyze whether the First Amendment presumption also applies....

The recent Furtado v. Napolitano, 2018 WL 6521914, (D. Mass. Nov. 26, 2018), reached a similar result. There, the file was unsealed for several years, then briefly sealed, for reasons similar to those given by Mr. Badinelli, but then the court promptly unsealed it (based on a motion to unseal that I had filed, because I'm researching such sealing cases). The rationale was somewhat narrower than that in Badinelli, but consistent with it:

Mr. Furtado argues that the public's access to court records in these cases [in which he had sued his former employer, a government agency] has caused him significant hardships, including emotional trauma and an inability to find work.

The Court is sympathetic to any harm that has come to Mr. Furtado as a result of public access to court records of his case. However, Mr. Furtado has not articulated any specific basis on which sealing these records, after they have been publicly accessible for years, will remedy these hardships, particularly given that they will almost certainly remain available elsewhere on the Internet. "Only the most compelling reasons can justify non-disclosure of judicial records." Here, Mr. Furtado has not offered any compelling justification to seal the records in these now years-old cases.

Tech World Turned Upside Down Down Under

Episode 243 of the Cyberlaw Podcast

In the News Roundup, Nick Weaver and I offer very different assessments of Australia's controversial encryption bill. Nick's side of the argument is bolstered by special guest Denise Howell, the original legal podcaster, with 445 weekly episodes of This Week in Law to her credit.

Later in the program, I interview Rep. Jim Langevin (D-RI), who's been a force for cybersecurity both on the Homeland Security Committee and on the Armed Services subcommittee that oversees Cyber Command and DARPA – a subcommittee that insiders expect him to be chairing in the next Congress.

Turning back to news, the Marriott hack, already one of the biggest in history, has developed a new and more interesting angle, Gus Hurwitz explains: It may have been a Chinese intelligence operation.

The Khashoggi killing has backfired on… Israeli and Italian hacking companies? Yes, indeed. Hacking Team and NSO are now immersed in legal hot water. And as a sign of how much the Middle East has changed, Nate Jones tells us that a Saudi dissident is now waging lawfare in the courts of Tel Aviv.

We also touch on what the detention in Canada of Huawei's CFO means for US-China technology relations as well as on a new DOD report on the risks of EMP. Nick explains why he doesn't worry about EMP but nonetheless loves the EMP alarmists.

Download the 243rd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Final Version, "Cross-Enforcement of the Fourth Amendment"

Fresh off the law review presses.

I'm pleased to say that my latest article has just been published: Cross-Enforcement of the Fourth Amendment, 132 Harv. L. Rev. 471 (2018). Here's the abstract:

This Article considers whether government agents can conduct searches or seizures to enforce a different government's law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court's decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law — who can enforce what law — is remarkably unclear.

After surveying current law and constitutional history, the Article offers a normative proposal to answer this question. Each government should have the power to control who can enforce its criminal laws. Only searches and seizures by those authorized to act as agents of a sovereign trigger the government interests that justify reasonableness balancing based on those interests. The difficult question is identifying authorization: questions of constitutional structure suggest different defaults for enforcement of federal and state law. Outside the Fourth Amendment, governments can enact statutes that limit how their own officers enforce other laws. The scope of federal power to limit federal enforcement of state law by statute should be broader, however, than the scope of state power to limit state enforcement of federal law.

There's a Volokh-Conspiracy-related angle to this article, although it's pretty obscure. Long-time dedicated readers may remember that back in 2008, before the oral argument in Virginia v. Moore, I became super-interested in the constitutional status of United States v. Di Re. Was that case applying the Fourth Amendment, or was it based in the supervisory power? I was pretty sure it was the former, although others disagreed. Almost a decade later, when I started researching this article, I was amazed to see that the Supreme Court's answer to the questions I was studying seemed to hinge on determining the constitutional status of United States v. Di Re. Years later, I think I finally answered the riddle, see pages 508-514. I guess everything ends up being relevant somehow.

The Amy, Vicky, and Andy Act Is Signed Into Law

The new law will help victims of child pornography crimes receive full restitution from convicted defendants who have harmed them.

On Friday, President Trump signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA). The Act will help victims of what are frequently referred to as "child pornography" crimes obtain full restitution. The Act helps to resolve a thorny legal issue about how to provide restitution to victims -- an issue that was addressed in a 2014 case I argued before the U.S. Supreme Court with co-counsel James Marsh, Paroline v. United States. In rejecting our position that each defendant should pay the "full amount" of a victims losses, the Court articulated a confusing view on the partial restitution to which victims like Amy were entitled. The new law will help ensure victims ultimately receive full restitution from defendants who have harmed them.

A bit of background will usefully frame the importance of the new law. Victims of some crimes -- including child pornography crimes -- suffer injuries caused by multiple defendants. One such victim is "Amy," who was repeatedly raped by her uncle starting when she was four years old. She disclosed the abuse, received treatment, and (according to her therapist) was "back to normal" when she was nine. Then, when she was seventeen, Amy discovered that images of her sexual abuse were among the most widely circulated in the world. The knowledge the persons around the world are viewing those images has been psychologically very harmful to Amy.

Amy's distress is not unusual. As Senator Hatch explained in remarks regarding the new act: "Child pornography is unlike any other crime. The abuse involved in creating these images profoundly alters the lives of victims, while trafficking in the permanent record of that abuse perpetuates and expands the harm. As the Supreme Court noted in . . . Paroline v. United States: 'Every viewing of child pornography is a repetition of the victim's abuse.'"

When defendants are convicted for possessing child pornography, frequently Amy's (or Vicky's or Andy's or other victims') images are among those the defendant possessed. The defendant is, accordingly, in part responsible for the emotional distress suffered by the victim. But what share of the emotional distress is any particular defendant responsible for? In Paroline, the Supreme Court interpreted the restitution law then in effect (18 U.S.C. sec. 2259) as requiring some sort of disaggregation of the responsibility for the harm suffered by a victim. In an opinion written by Justice Kennedy, a narrow majority concluded that "[i]n this special context, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim's general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount."

Chief Justice Roberts dissented in Paroline. He wrote: "The Court's decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it."

Since the Paroline ruling, federal trial courts across the country have struggled to operationalize the Supreme Court's command to "order restitution in an amount that comports with the defendant's relative role in the causal process" -- and for good reason. If (as seems quite likely) Amy is victimized by tens of thousands of viewers of her images, it may be next-to-impossible to assign some specific causal role to any particular defendant.

In 2015, I co-authored a law review article (with my co-counsel James Marsh), urging Congress to eliminate this problem by setting minimum restitution amounts. Congress has now followed that suggested approach in the AVAA.

Here are a few highlights from the new law: As factual support for the Act, Congress found that "the unlawful collective conduct of every individual who reproduces, distributes, or possesses the images of a victim's childhood sexual abuse plays a part in sustaining and aggravating the harms to that individual victim." (Sec. 2(f)). As a result, the Act requires a court sentencing a defendant convicted of a child pornography crime harming a victim to determine the full amount of that victim's losses and then to order restitution from a defendant for amount reflecting the defendant's relative role in the causal process. (Sec. 3(a)(2)(B)). But -- and here's a new innovation -- a trial court must impose restitution in the minimum amount of $3,000.

The AVA also creates a fund for compensating victims of child pornography trafficking in child pornography trafficking (advertising, distribution, and possession) and child pornography production. Whenever a defendant is convicted of a child pornography trafficking crime, for example, a victim has the option of electing to receive a one-time "defined monetary assistance" in the amount of $35,000 (indexed for inflation). The fund will be paid for, in party, through special assessments levied on defendants who are convicted of trafficking crimes, with an additional appropriation of $10 million per year if necessary. Attorneys' fees are capped at 15%.

From a practical point of view, with regard to restitution litigation the most salient feature of the new law will be the $3,000 fixed minimum amount. This minimum ensures that child pornography victims will not receive a token award from any particular defendant. Does this mean that the new law is subject to the same criticisms as mandatory minimum sentencing laws (criticisms that I have articulated with respect to "stacking" gun charges). The situations seem easily distinguishable:

Although reasonable people can differ on the appropriateness of such mandatory [prison] sentences, it is important to understand that the AVAA does not specify mandatory prison sentences designed to punish offenders. Instead, the AVAA is a remedial statute designed to provide compensation that is akin to joint and several liability in civil tort law. No one suggests that a tort defendant who is ordered to pay the full amount of a victim's losses is somehow subjected to a "mandatory minimum." Like joint and several liability, the AVAA spreads liability for the full amount of a victim's losses across a wide, and often ever-increasing, number of defendants who all become contributors and payors. Instead of one defendant paying one amount and another defendant paying another amount and still other defendants paying nothing, the AVAA requires all defendants to pay something according to their means and in accordance with a reasonable and proportional payment schedule under 18 U.S.C. § 3664. The inherent inequity of the post-Paroline ad hoc multi-factor driven approach is replaced by a simple and streamlined statutory assessment, which is below the statutorily established fine.

This is an excellent new law, which will help to provide full restitution to innocent child pornography victims from guilty defendants involved in child pornography crimes.

Cynthia Nicoletti's Secession on Trial: The Treason Prosecution of Jefferson Davis

Constitutional theory meets criminal defense meets Civil War history.

A few weeks ago, I opened up Professor Cynthia Nicoletti's recent book, Secession on Trial: The Treason Trial of Jefferson Davis. I didn't expect that I'd spend the next few weeks fiercely poring through it, but I've found myself unable to put it down or stop thinking about it.

The book tells the story of the federal government's attempt to prosecute Jefferson Davis, the former president of the so-called Confederate States of America, after the end of the Civil War. (If, like me, you found yourself thinking, "huh, I didn't even know that there was a treason trial of Jefferson Davis," I will spoil the ending -- the trial never comes, and Davis receives the benefit of the general amnesty from President Johnson.)

Nicoletti argues that at the time, the legality of secession was far less settled by the war than we like to think. If secession was lawful, Jefferson Davis might no longer have been a citizen of the United States subject to the U.S. law of treason, and the threat of that defense -- and the possibility that it might succeed in front of a jury -- kept the federal prosecutors quite nervous about pressing the issue. That, among other things, is how Davis's lawyers managed to run out the clock until the amnesty.

But the book is packed with so many other interesting tidbits and legal arguments that I suspect it will be a delight for many people interested in constitutional law or criminal procedure. The defense succeeded only because of the intersection of these uncertain questions of high theory with the ordinary stuff of criminal practice -- securing continuances, negotiating bail, trying to get hints about the particular preferences of the trial judge, litigating procedural technicalities. Among other things, we get surprise appearances from: the appellate jurisdiction of the Supreme Court; the law of criminal venue; early lectures on what we now call "professional responsibility" by George Sharswood; Section Three of the Fourteenth Amendment; and much more.

Secession on Trial is also just a delight to read. I cannot think of the last time that I read a work of legal history that was so rich with interesting legal argument since David Currie died. In any event, here are three other themes that I kept noting in the book.

The rule of law and the civil war. As Nicoletti emphasizes, the administration in the Davis case was at pains to adhere to the letter of the law, and a somewhat conservative interpretation of the letter of the law at that. This led them to shy away from several tactics that might have let them avoid trying the case in front of a Virginia jury (such as arguing that Davis could be tried by a military commission, or by a jury in either Indiana or West Virginia). She argues, I think persuasively, that this is because it was seen as especially important to restore the ordinary legal norms that had been frayed during the Civil War.

This is relevant to a larger debate about constitutional history. I sometimes come across constitutional scholars today who will argue, in effect, that "the Civil War changed everything" in constitutional law. We know that the war led to three incredibly important amendments to the Constitution, and to a number of important legal precedents, but one sometimes sees scholars of federalism or even other aspects of constitutional law write as if the entire constitutional system was essentially melted down and reformed. It is striking that the participants in Nicoletti's book did not behave that way. They went to great trouble to hold themselves out as continuing the pre-existing legal regime, even at tactical cost.

Zealous advocacy. Charles O'Connor, Jefferson Davis's defense lawyer, really worked all the angles in support of his client. Because his client's interests were implicated by broader political thought about secession and by the law of military tribunals, he helped prop up arguments by other lawyers in other cases that could help his client's general position. When it looked as if things might turn very bad for Davis, he advised him to flee the country, and offered to reimburse the folks who would lose money on Davis's bail. These are the kind of things I usually only hear about in fanciful hypotheticals about the ethics of criminal defense, but they may well have been in Davis's best interests, and they raise interesting questions about what the defense of a much-hated and high-profile criminal defendant should look like.

Liquidation. In a forthcoming article, I recount James Madison's theory of constitutional interpretation through practice -- "liquidation" -- by which a repeated course of constitutional decisions can eventually settle an uncertain point of constitutional law. One historical example that I have always had a hard time explaining in this framework is the Civil War's settlement of the constitutionality of secession. In the Civil War, it looks as if the constitutional question was settled in one very big episode, rather than a series of decisions as liquidation would require.

But after reading Nicoletti's fascinating narrative, I think that the process was closer to liquidation than I realized. Nicoletti shows that the constitutionality of secession was not quite so settled after the war, which is why subsequent episodes like Davis's treason trial made Unionists so nervous, and why various decisions and debates after the war were still important for the secession issue. Unionists invoked the tradition of "trial by battle" to explain how war could settle a point of constitutional law, but perhaps the reason they had to do so, and that the analogy had so much drama, was because it in fact required a longer course of practice before the issue was settled.

"Ruling on Iranian Law" in California Courts

And it's good.

[Contrary to the view of some, this is not what happens when California courts use the law of a foreign country -- even when it is based on Islamic law -- under normal choice-of-law principles.]

[A.] First, a bit of background: Say that I live in Oklahoma, and work at a plant in Oklahoma, where I'm exposed to some injurious chemicals (say, asbestos). Some years later, I move to California and then get sick, allegedly because of this exposure.

I sue in California court -- a logical place, since this is where now I live, and (let's assume) where the defendants have their principal place of business, so it's not unfair to subject them to California courts' jurisdiction. But California tort law is considerably more plaintiff-friendly than Oklahoma tort law in various ways. Should California courts decide the case applying California law or Oklahoma law?

Generally speaking (though with some potential exceptions), the answer is Oklahoma law, as the California Supreme Court held in McCann v. Foster Wheeler LLC (Cal. 1994). (Most other states take the same view.) Businesses that are dealing with Oklahomans in Oklahoma should be able to rely on their conduct being evaluated under Oklahoma law, regardless of where the Oklahomans might later move. And Oklahoma courts and legislators should be able to assure businesses that, if they locate in Oklahoma, they will be subject to the Oklahoma-specified standards of liability (as modified by federal law, if federal law applies):

Because a commercial entity protected by [a particular Oklahoma statute] has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential plaintiff ultimately may move would significantly undermine Oklahoma's interest in establishing a reliable rule of law governing a business's potential liability for conduct undertaken in Oklahoma.

The same applies if I'm a Frenchman working in France, or a Dominican Republic citizen working in the Dominican Republic. (McCann favorably cites cases involving conduct in both countries.) California courts would have to then apply French law or Dominican Republic law -- that may not always be easy, since the laws are unfamiliar and in a foreign language, but courts would be able to consult experts or treatises, and do the best they can. Indeed, foreign law will often apply even when a tort is committed against a California citizen in a foreign country, but the matter is more complex there, which is why I'm focusing in this post on a tort committed against a foreign country's citizen in that country.

[B.] In late October, a California court applied the same approach with regard to Iranian law, and I think the decision is a very good illustration of how these things should be done. (The case has only recently hit the news, and I learned about it thanks to Blaise Scemama of the L.A. Daily Journal.) Here is the heart of the decision, titled "Ruling on Iranian Law," Sabetian v. Air & Liquid Sys. Corp. (L.A. Superior Ct. Oct. 24, 2018):

Plaintiffs allege Houshang Sabetian suffered asbestos exposures while working at oil refineries and oil fields in Iran from 1959 to 1979. The refineries and oil fields were owned by the Iranian Government.

At issue here are two motions to apply Iranian law filed by Foster Wheeler, LLC, Exxon Mobil Corporation, and ExxonMobil Oil Corporation. The motions seek application of Iranian law to the negligence standard of care, strict liability, joint and several liability, compensatory damages, and punitive damages....

The court cited the McCann v. Foster Wheeler case I discussed above, and concluded that it should generally apply Iranian law, because "the state [or country] where the tort occurs possesses the predominant interest in having its law applied," especially when the plaintiff was a citizen of that state or country at the time the tort was committed. It then went on to discuss the particular legal rules that might be relevant:


Reading Recommendations from Me and My Colleagues

mine is The Player of Games, by Iain Banks

Every year, the University of Chicago Law School asks the faculty for some of our holiday reading recommendations. I usually try to recommend one fiction and one non-fiction book, but this year I'd succumbed to several months of readers' block (not completely unrelated to being the father to a new toddler...) and thought I would have neither. But in the nick of time, I found a fiction recommendation:

Iain M. Banks, The Player of Games

The main character is a world famous game-player who is lured away from his home to play a game so complicated that a multi-planet empire has been constructed around it. Political intrigue, personal intrigue, principal-agent problems, and other forms of game theory ensue, though we never learn the details of this or any game. The book also serves as an introduction to Banks's Culture series, a set of science fiction books set in a post-scarcity society where humans live satisfied but boring lives while artificial intelligence handles the strategic planning. This novel is so captivating that it helped break me out of a several month period of reader's block.

You can click here for the rest from my colleagues.

(A new post on a non-fiction recommendation should be coming soon...)

More from, and to, Prof. Dershowitz

Further explication of our ongoing disagreement concerning the scope and conduct of the Mueller investigation.

[Updated 12/11/2018 at end]

Last week, I published a post [here] criticizing the comments that Alan Dershowitz had made in a Fox News interview [here] concerning the Michael Cohen guilty pleas. Prof. Dershowitz responded to my post [here], chiding me for, among other things, "deliberately failing to quote" from his more extensive op-ed dealing with these issues [here]. I noted, parenthetically, that I hadn't quoted or cited Dershowitz' op-ed because I was unaware of its existence.

I would have been content to leave the matter there, but Prof. Dershowitz has again taken issue with what I wrote.

"It's no excuse that Post was unaware of my oped on the subject. Tom Brady would have done a bit of research - a simple Google search - before leveling an unfair attack based on an out-of-context TV snippet. I want the debate to be live so that the public can judge who is Willie Mays and who is Tom Brady. The only time ageists comment on my advanced age is when they disagree with conclusions and don't have good responses on the me merits."

First, let me be clear that I wasn't commenting on Prof. Dershowitz' age, any more than I was commenting on Willie Mays' age, in the original post; I was commenting on his performance in public view - on the field, as it were.

Second: I do not agree that I should have searched for and consulted his op-ed - or any of this other writings, for that matter - before writing the original post. I don't buy it. He said what he said, and an audience of many millions of people - no more than a handful of whom, surely, had read his op-ed - heard what he said. For the vast majority of those viewers, then, that is his contribution to the public debate on these matters. I hardly think it is unfair to base my criticism of what he said on what he said.

I am not unaware that it can be difficult to summarize complicated legal arguments in a sound bite or snippet. But that is just the risk you take when you voluntarily inject yourself into the public debate via TV interviews and sound bite snippets. Certainly, in the pressure of the moment, anyone may say things that are incorrect and/or misleading; I've done it myself. But the correct response in that case is a retraction, perhaps accompanied by an explanation or even an apology, not "Go read my other stuff and you'll see what I meant to say."

Third: "Read the op-ed," Prof. Dershowitz wrote, "and respond to that." Fine - I did, and I shall. I don't believe it strengthens Dershowitz' case.

"It was always an uphill struggle for Mueller, since collusion itself is not a crime. In other words, even if he could show that individuals in the Trump campaign had colluded with Russian agents to help elect Trump, that would be a serious political sin, but not a federal crime. Even if Mueller could prove that members of the Trump team had colluded with Julian Assange to use material that Assange had unlawfully obtained, that, too, would not be a crime. What would be a crime is something that no one claims happened: namely, that members of the Trump campaign told Assange to hack the Democratic National Committee before Assange did so. Merely using the product of an already committed theft of information is not a crime." (emphasis added)

That is incorrect. To be sure, "collusion" (whatever it may mean, precisely), or using stolen information, is not always a crime. But that's not what he said; he said - three times in one paragraph - that it is not a crime when in fact, in certain circumstances, it may well be. And we don't yet know, because Mueller has not completed his investigation, whether those circumstances did, or did not, pertain in connection with the 2016 election.

I can think of any number of very plausible "collusion" scenarios, based on (and consistent with) everything we now know about the actions of Trump campaign officials during the 2016 campaign, that would indeed constitute federal and/or state crimes. For instance:

It is unlawful for foreign nationals (and, by extension, foreign governments) to contribute, directly or indictly, "anything of value" in connection with a federal, state, or local election, and it is unlawful for anyone to "solicit, accept, or receive" such a contribution. 52 USC § 30121.

The Economic Espionage Act makes it a federal crime for anyone who "receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization" if he or she "intend[ed] or kn[ew] that the offense will benefit any foreign government, foreign instrumentality, or foreign agent." 18 USC 1831.

It is a federal crime for any person "who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal," to "engage within the United States in political activities for or in the interests of such foreign principal" or to "act as ... a political consultant for or in the interests of such foreign principal" or to "solicit, collect, disburse, or dispense contributions, loans, money, or other things of value for or in the interest of such foreign principal" without registering as a foreign agent with the DOJ. 22 USC § 611, 612.

It is a federal crime for anyone to "receive, possess, conceal, store, barter, sell, or dispose" of any "goods, wares, or merchandise, ... which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken." 18 USC § 2315

It is a federal crime to "knowingly steal, ... or obtain by fraud, artifice, or deception" any "trade secret that is related to a ,,, service used in or intended for use in interstate or foreign commerce," intending or knowing that the offense will, injure any owner of that trade secret> It is also unlawful to "receive, buy, or possess such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization," and to "conspire with one or more other persons to commit" any of these offenses. 18 U.S.C.S. § 1832

It is a federal crime to "intentionally access without authorization" a computer "which is used in or affecting interstate or foreign commerce or communication" and obtaining information thereby, as well as accessing such computer "knowingly and with intent to defraud ... and by means of such conduct furthers the intended fraud and obtains anything of value> 18 USC § 1030 et seq.

And that is just for starters, off the top of my head; there could well be additional crimes involved in conspiracies to accomplish any or all of the above. And the larger question of whether the Trump campaign was a "Racketeering Enterprise" under RICO.

Let me be clear: I am not saying that we know, at this point, whether these crimes have been committed. I don't know, and Prof. Dershowitz doesn't know, what facts Mueller has uncovered regarding what transpired during the many meetings and phone calls that now appear to have taken place between Cohen, Manafort, Roger Stone, Julian Assange, Donald Trump Jr., etc. etc. and agents of the Russian government in connection with the Wikileaks release of stolen DNC emails, and whether those contacts satisfy the elements of these violations.

But to say - as Dershowitz has said - that whatever happened, it was at most a "political sin" and not a federal crime is bizarre, irresponsible, and incorrect.

One final point. Prof. Dershowitz' op-ed also contained this:

"It is important to note that Special Counsel Robert Mueller does not have a roving commission to ferret out political sin, to provoke new crimes, or to publish non-criminal conclusions that may be embarrassing to the President. His mandate, like that of every other prosecutor, is to uncover past crimes. In Mueller's case those crimes must relate to Russia."

That also is incorrect. Mueller's mandate is spelled out, quite clearly, in his appointment letter [here]: In order to "discharge the [DOJ's] responsibilty to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election," Mueller was expressly authorized to conduct an investigation into "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump" (emphasis added). That is a considerably broader mandate than one limited to "uncover[ing] past crimes." Indeed, Prof. Dershowitz' own argument - that using information that was known to have been unlawfully obtained by a foreign government and which was being made available, in secret transactions, for the express purpose of influencing an American presidential election isn't a crime! - shows how much broader Mueller's mandate actually is.

I'd like to know if that actually happened, crime or no crime: did Trump campaign officials in fact use information that was known to have been unlawfully obtained by a foreign government and which they knew was being made available to them via secret transactions for the express purpose of influencing an American presidential election? And thankfully, that - and not Prof. Dershowitz' imagined mandate - is precisely what the American people, through our Department of Justice, have authorized Mueller to figure out as best he can. What the hell was going on? Were there "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump"? And if there were, what were they, and how did they operate, and for what purpose? It may turn out to be profoundly important for the future of this country that we have authorized an investigation to help us figure that out.

But Prof. Dershowitz' has mischaracterized all that for his viewers and readers. They would conclude - reasonably enough, based on Prof. Dershowitz' mischaracterization of the mandate - that the Mueller investigation will have somehow "failed" if it produces nothing more than uncover "political sins" and not indictable crimes. That is false, and it is pernicious.


Prof. Dershowitz responds:

There could be no better proof of my point than David Post's absurd catalogue of possible crimes that he believes are applicable to President Trump's conduct. I once wrote the following in an op-ed; "When I taught law at Harvard, I always gave a final exam that included what is called an 'issue spotter.' I presented a complex hypothetical case, often based on a real one, and asked the students to stretch their imaginations to come up with every conceivable crime that might be charged and every conceivable defense that might be offered. That was the first part of the question, and most students excelled at spotting the relevant issues. In the second part of the question, I asked them to use their judg[e]ment in deciding which, if any, of these crimes could realistically be charged and which defenses could realistically be offered. It was this part of the question that separated the very good lawyers, which included the vast majority of the students, from the exceptional ones. To be great lawyers requires the exercise of judg[e]ment, subtlety, nuance, and an ability to predict what the courts will do." Post's catalogue reminds me of the first group of students. The best example of the danger of Post's catalogue is his inclusion of the federal statute that states it a crime for anyone to "'receive, possess, conceal, store, barter, sell, or dispose["] of any "goods, wares, or merchandise, ... which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken.' 18 USC § 2315" If that statute were to be applied to first amendment protected material, the publishers of the New York Times, Washington Post, and The Guardian would still be serving their prison terms for publishing material stolen from Manning, Snowden, and Ellsberg, all of which crossed state lines. Obviously, to apply that 'stolen goods' statute to information used in a political campaign would be unconstitutional.

Now to Post's most dangerous point: that Mueller's mandate extends to exposing non criminal behavior. If the mandate were so interpreted, it would be unlawful, perhaps even unconstitutional. The purpose of a Grand Jury, as reflected in the Fifth Amendment, is not to grant a roving commission to a prosecutor who hears only one side of the case. It would violate every norm of fairness to allow a prosecutor to use the imprimatur of the Justice Department to present a one-sided, political attack against any citizen, including the President. Grand Juries and Prosecutors have one job and one job alone; to uncover crime, not to reveal sin. Revealing sin was the function of the inquisition and perhaps the Starr chamber. It is not the proper function of an American grand jury or prosecutor.

If the shoe were on the other foot—if a President Hillary Clinton were being investigated by a special council [sic]-- I doubt that we would be hearing such dangerous anti-civil liberties interpretations from so distinguished a professor as David Post.


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