White-Collar Crime

Barry Bonds, Judge Kozinski, and Trusting the Government

How can we address the threat of overly broad criminal statutes?

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The Ninth Circuit has issued its en banc opinion in the Barry Bonds obstruction of justice case. Judge Kozinski wrote an opinion that is characteristically fun reading, but, I think, also contains a small sleight of hand that nicely illuminates one problem with how courts respond to overly broad criminal statutes.

The astute reader may or may not recall that I previously wrote about the en banc oral argument in the Barry Bonds case. It was a great argument. It led to some great opinions, too.

A quick background — Barry Bonds was subpoenaed to a grand jury. At one point, he was asked whether he was ever given a syringe by his trainer full of stuff to inject into himself. Bonds gave a rambling nonresponsive answer. The AUSA asked the question again, and Bonds said “No.”

That was the basis of his conviction for obstruction of justice.

It reminds me a bit of the guy in Ferguson who said his name was “Mike” when it was, in fact, “Michael,” and was charged with making a false statement to the cops. They’d both be silly if they weren’t so sad.

In any event, the Ninth Circuit, sitting en banc, reversed. The very short per curiam opinion said it was because the statement wasn’t material and didn’t weigh in on the breadth of the federal obstruction of justice statute. Judge Kozinski’s concurring opinion was less reserved.

The statute in question — 18 U.S.C. § 1503 — makes it a crime to corruptly influence, obstruct, or impede the due administration of justice. “Corruptly” there means that the act was done with the intent to obstruct justice. Which is not super helpful as a definition.

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The relevant clause in 1503 is called the “omnibus” clause, because it is meant to sweep anything not otherwise criminalized that might be a problem within its reach. Here’s Judge Kozinski’s summary of where the omnibus clause of 1503 applies:

By its literal terms, it applies to all stages of the criminal and civil justice process, not just to conduct in the courtroom but also to trial preparation, discovery and pretrial motions. Indeed, it arguably covers conduct taken in anticipation that a civil or criminal case might be filed, such as tax planning, hiding assets or talking to police.

So, what are the effects of having a statute like 1503?

[S]ection 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction. Did a tort plaintiff file a complaint seeking damages far in excess of what the jury ultimately awards? That could be viewed as corruptly endeavoring to “influence . . . the due administration of justice” by seeking to recover more than the claim deserves. So could any of the following behaviors that make up the bread and butter of litigation: filing an answer that denies liability for conduct that is ultimately adjudged wrongful or malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary judgment; seeking a continuance in order to inflict delay on the opposing party; frivolously taking an appeal or petitioning for certiorari — the list is endless.

There’s much more in his discussion of how crazy the statute is — and it’s all wonderful — until Kozinski turns to the constant refrain when these problems are pointed out, that we can trust the government. That just because they have the power to imprison virtually any lawyer without any legal repercussions, we should be ok with that because the government is good, exercises its discretion fairly, and is looking out for each of our best interests.

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Which, personally I find to be a huge relief; I don’t know why we’d even need a constitution as a check on government power at all.

Kozinski is less enthusiastic. Here’s his response:

We have no doubt that United States Attorneys and their Assistants would use the power to prosecute for such crimes judiciously, but that is not the point. Making everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It also gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass. The perception that prosecutors have such a potent weapon in their arsenal, even if never used, may well dampen the fervor with which lawyers, particularly those representing criminal defendants, will discharge their duties. The amorphous nature of the statute is also at odds with the constitutional requirement that individuals have fair notice as to what conduct may be criminal.

That last sentence, to the extent there’s an implication that it follows from the prior ones, is a bit of a cheat. (And, yes, the “also” undercuts that reading, but I think the broader flow of the argument in that section of the opinion supports it)

So, here’s a question that Kozinski’s discussion raises — what if Congress passed a statute that was absolutely spanking clear that it’s to be read massively broadly and allow, for example, the prosecution of bread and butter advocacy by lawyers.

Suppose the executive branch simply held the power to put just about any lawyer in prison for any time — and those decisions wouldn’t be legally reviewable. It would be a perfectly lawful exercise of executive power. Construing the statute narrowly wouldn’t solve the problem — an overbroad yet clear law would still raise the problems that Kozinski is complaining about.

The biggest response from courts confronting a broad piece of legislation is to just read it narrowly. See, e.g., Yates — the “is a fish a tangible object” case. And that’s what gives rise to Kagan’s “one fish, two fish” cite — pretty clearly, a fish is an object you can touch. Reading a clear statute narrowly and contrary to Dr. Suess feels wrong.

Yet, one would think that in light of the framers’ concerns about government power, that there would be some check on this kind of broad grant of authority to imprison broad swaths of the citizenry if the executive wanted to. And, moreover, that power should live some place in the judicial branch.

Yet in criminal cases, judges aren’t doing it — the Courts have read their role as checking to make sure the law is applied as written, not whether such an application goes too far in criminalizing what should really not be criminal.

The entity that’s supposed to serve this function, I think, is a jury. Judge Rakoff has written about this before.

Juries are meant to be the judicial branch check on government power. They’re citizens, making sure that what the government is doing in their name is something they agree with. It’s meant to be a populist institution.

But, if all a jury does is apply a law without weighing in on whether they agree with its application — that is, if they aren’t allowed to nullify — then that populist function is sucked out of the criminal justice system, which removes an important check on a broad grant of power to the executive.

There are a number of solutions to overbroad criminal laws. Obviously, getting Congress to take them off the books would be the best start. But good luck getting that through. Having judges interpret criminal statutes narrowly — as they should — is also a good thing, but as a solution to executive branch overreaching it can be either dishonest or a power grab for the judiciary (or both). The executive branch could solve the problem too, I suppose, by announcing clear actionable standards for how it will apply overbroad criminal statutes (like a cousin to the DOJ marijuana enforcement policy, but with teeth).

Absent those solutions, there’s a more fundamental check — a constitutional check — on government power: jury nullification. So, let’s all start working on a model nullification jury instruction, shall we?

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