Government Discretion And Newman: A Response To A Comment

Unfettered discretion is bad. Very loosely fettered discretion is also bad. That’s the system we have now. It’s a problem.

Generally, I don’t read the comments to this column because (a) I’m busy, and (b) I prefer to have a positive view of humanity. I really don’t understand why someone would spend time commenting anonymously about stuff on the internet. But there are many paths to a happy life; let a hundred flowers bloom.

A bit ago, probably because the alternative was working on a brief I wasn’t motivated to read, I was going through the comments on some of my posts and came across one that I thought warrants response.

The comment is from Fr0zt (I assume not his real name) on my column about United States v. Newman.

Here’s the comment (compliments on my column in general and attack on Joe Patrice omitted):

You seriously want to argue that the District Attorney shouldn’t aggressively prosecute folks acting in a manner that it believes to be against the spirit and letter of the law where there is any question? I get that you’re a white collar defense attorney, but you’re seriously advocating for a system in which aspiring white-collar criminals should seek out any ambiguity in the law and engage in that activity aggressively until the legislature catches up?

This is as bad as your argument that a question of law should automatically be a complete defense to white collar crimes. What makes it worse is that I’m sure you’re sophisticated enough to know that in these cases, the facts are often uncontested and the real question is whether the letter of the law adequately captures the conduct it was drafted to prevent. Don’t demean yourself by adopting this bullshit argument that white collar defense attorneys should automatically win wherever there is a question.

To be fair, I find Fr0zt to be a cut above most commenters (based on my very limited review). He seems to be smart and he talks about real issues. And he poses a good question.

So, here are three responses:

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  1. Where there is a close question of law, that can be resolved through a civil enforcement action by an agency, as in Newman, yes, I think a prosecutor shouldn’t aggressively prosecute people to clarify the law. Let an agency do it where the stakes are lower.
  2. I don’t think white-collar defense lawyers should automatically win whenever there’s a close question; that’s a bit of a straw man. I do think, though, that where there is a reasonable question of whether conduct is covered, that should be resolved in a person accused of a crime’s favor, done so early in the process, and that prosecutors should hold back in these cases (see point (1)).
  3. I find your concern about people looking at the body of federal criminal law, deciding which conduct is arguably not covered, then exploiting that for personal gain more than a little far fetched. I’d invite you to look at Title 18 of the U.S. Code (leaving aside all of the other criminal provisions scattered among our federal statutes). It’s hard for me to imagine someone sitting down with that book and figuring out what’s only arguably covered so they can exploit it. But more far fetched things have been proposed.

In essence, I fear that Fr0zt’s concerns stem from a concern — which comes up often in this area — that if the law is read narrowly then bad men will be able to run free across the land. That the Department of Justice and the law enforcement community exist to strike down that bad conduct — sort of like an army of modern knights.

That’s fine, as long as it’s clearly sanctioned by the law. Prosecutors shouldn’t have a license to go after people based on any reading of a statute that’s tenable — to do so treads too close to lawlessness, to giving prosecutors and agents an almost unfettered ability to go after wrongdoers, not just lawbreakers.

It’s more than a bit like that quote from A Man for All Seasons:

This country’s planted thick with laws from coast to coast-man’s laws, not God’s-and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

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Unfettered discretion is bad. Very loosely fettered discretion is also bad. That’s the system we have now. It’s a problem.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.