Supreme Court, White-Collar Crime

Scalia Is A Tease

The Justice Scalia you hear at oral argument isn't always the Justice Scalia you get in the opinion.

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Scalia gave hope to the criminal defense bar in a recent oral argument. The question was an interpretation of an ambiguous statute. After the lawyer for the government conceded that the text of the statute doesn’t resolve how to read it, Scalia said (summary from Slate):

“I agree! . . . And what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for 10 years, it has to cross sharp corners. It has to dot every i and cross every t. It has to be clear!”

Like Charlie Brown running up to kick that football, I find myself getting excited that maybe Scalia’s oral argument position will wind up in an opinion. Will the Rule of Lenity rise triumphant?

Remember the oral argument in Yates from last year? It was the fish case where a guy destroyed a fish and the Court had to figure out if destruction of a fish is a federal crime (spoiler alert: it isn’t).

Scalia broke into the argument to ask what kind of a “mad prosecutor” would charge a guy with a felony just for destroying a fish. He suggested that if the Department of Justice was going to read statues in a wicked crazy broad way then the Court should just start interpreting them more narrowly.

The Court ultimately held that destruction of a fish is not a federal crime, at least not in that context. The dissent — Kagan’s “one fish, two fish” dissent — argued that the statute was clear and that the prosecution was viable.

Scalia joined the dissent.

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The plurality opinion was a victory for the Rule of Lenity — championing it as an alternative way to conclude that a fish is not the thing whose destruction is prohibited by the U.S. Code. (Alito concurred and didn’t join in the Rule of Lenity bit. Lenity doesn’t seem like Alito’s scene.)

The Yates dissent, though, gave short shrift to Lenity, citing another Scalia opinion:

[W]hen all else fails, the plurality invokes the rule of lenity. See ante, at 18. But even in its most robust form, that rule only kicks in when, “after all legitimate tools of interpretation have been exhausted, ‘a reasonable doubt persists’ regarding whether Congress has made the defendant’s conduct a federal crime.” Abramski v United States, 573 U. S. ___, ___ (2014) (SCALIA, J., dissenting) (slip op., at 12) (quoting Moskal v. United States, 498 U. S. 103, 108 (1990)). No such doubt lingers here. The plurality points to the breadth of §1519, see ante, at 18, as though breadth were equivalent to ambiguity. It is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward “object” meaning object. Lenity offers no proper refuge from that straightforward (even though capacious) construction.

Scalia, at the Yates argument, raised our hopes. Then the opinion Scalia joined dashed those hopes.

And perhaps it’s the same thing here. Scalia’s not been the best in his opinions on the Rule of Lenity. It seems he may treat oral argument the way many folks look at conversation at Thanksgiving dinner — it’s a good place to trot out things you don’t really believe to get a rise out of people.

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Yet hope springs eternal.

(And, for fans of the debate over whether legislative history should be used to interpret a statute, there’s an interesting exchange here too. The Slate piece has more coverage.

Regardless of the merits on whether it’s ok to use legislative history when reading a statute, it does look like the taboo on legislative history is on the wane. Fads come and go in law as in fashion; we are all hipsters about something.

But the death of strict construction is probably good. There’s no credible argument that members of Congress actually read all — or even most — of the laws they vote on. If the reality is that laws are made by staffers, then the views of the staffers while making the laws ought to matter when you figure out what the laws mean.

Believing that Congress understands what it’s voting on is beautiful in the same way that a child’s belief that people are fundamentally kind is beautiful, but the beauty of a belief is not a great reason to use it to ground a legal theory.)

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.

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