Federal Prosecutors Research Articles

A interconexão do processo de contas com o processo judicial a partir da Operação Lava Jato

Este trabalho visa analisar a interconexão entre o processo de controle externo e o processo judicial, no contexto da Operação Lava Jato. Para tanto, serão examinados o problema da multiplicidade dos órgãos de controle e, de modo especial, os impactos da atuação do Ministério Público Federal e da instância judicial sobre a atividade do Tribunal de Contas da União. Na sequência serão discutidas a repercussão dos acordos de leniência sobre o exercício das competências do TCU e algumas questões controvertidas dessa relação de interdependência. Para cumprir esses objetivos, será promovida uma análise sistematizada da jurisprudência do TCU e dos tribunais judiciais, no propósito de construir uma visão concreta do tema em análise. Ao final do trabalho, constatou-se que o advento do instituto de leniência criou dificuldades adicionais à busca de uniformidade e coerência do sistema de controle brasileiro, devido à sobreposição de funções entre os diversos órgãos integrantes. Não obstante, percebeu-se uma atuação mais harmônica entre as diversas instâncias, que estabeleceram condições para o uso de provas compartilhadas contra o colaborador. O próximo desafio será a construção de um balcão único de leniência, com vistas à melhoria da alavancagem investigativa e da eficiência processual.

In Re: Courtney Wild

This petition for a writ of certiorari to the U.S. Supreme Court asks the Court to review the issue of whether the Crime Victims’ Rights Act (CVRA) required federal prosecutors confer with victims of Jeffrey Epstein before concluding non-prosecution agreements (NPA) with him. The petition arises from a NPA federal prosecutors in Florida reached with Epstein—blocking not only his prosecution for federal sex crimes but also that of his co-conspirators. The prosecutors never conferred with the victims about the non-prosecution agreement. After years of litigation about the validity of the secret NPA, the case reached the Eleventh Circuit. The Circuit ruled in an en banc decision, 7-4, that the CVRA does not give victims the ability to enforce their rights in court until the Justice Department formally files federal charges. This certiorari petition argues that the important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the government to secretly conclude pre-indictment NPAs with targets of federal investigations warrants immediate review. Because such arrangements are, by definition, secret, other circuits may never be able to speak to the legality of such resolutions. Leaving the issue to percolate means that the Justice Department will be free to dispense with victims’ rights and orchestrate clandestine deals without affording victims any rights under the CVRA. The Supreme Court may well face a now-or-never opportunity to review the important question of whether the CVRA permits such secrecy. In addition, the illegitimacy of the Justice Department’s practice of covertly and deceptively arranging non-prosecution deals is far too serious for the Supreme Court to wait to see what other circuits might say. The Eleventh Circuit’s decision guts victims’ rights under the CVRA. Such a dubious interpretation runs counter to the statute’s plain language, which Congress designed to create a comprehensive bill of rights for crime victims—with enforceable rights.

False Flags and the First Amendment: Lying Through Symbolic Speech

Federal prosecutors have accused Ivan Hunter, a leader of the right-wing Boogaloo Bois, of participating in a riot when he allegedly fired his AK-47 at the Minneapolis Police Third Precinct during Black Lives Matter protests in May of 2020. Hunter’s alleged target—the home base of Derek Chauvin, the officer captured on video killing George Floyd—burned down at the hands of protesters the same evening. This Essay argues that Hunter’s purported conduct is best understood as symbolic speech under the First Amendment, a conclusion few analyses would bother to reach because such speech would still be categorically excluded from First Amendment protection. Hunter’s alleged actions are not only more fully comprehensible as speech, but they also serve as an exemplar of a novel theoretical category: dishonest symbolic speech. Indeed, through his violence rather than through words, Hunter appears to have trafficked in a powerful form of political propaganda. Drawing on this remarkable yet increasingly representative case, the Essay offers two critiques of First Amendment jurisprudence. First, relying on the First Amendment to identify speech artificially impedes our ability to classify and process communicative events of substantial public consequence, especially as public concern grows about the spread of misinformation. Second, the underappreciated power of symbolic speech to spread lies offers a new and significant basis for skepticism about the longstanding doctrinal distinction between pure and symbolic speech.

How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition

Modern state medical marijuana laws date back to 1996, when Californians approved the first statewide medical marijuana legalization law via ballot measure; Colorado and Washington voters passed the first ballot initiatives legalizing marijuana for adult use in 2012. By summer 2021, a total of 36 states and 4 U.S. territories had legalized the medical use of marijuana and 18 states, two territories and the District of Columbia had legalized adult use of marijuana. Over this quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century. But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically. In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012. This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade. While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court and has evolved as the caseload has declined. Notably, in 2012, the majority of persons sentenced for marijuana offenses in federal court were Hispanic (66%) followed by white (22%), Black (8%), and other races (3%). But by 2020, though the majority were still Hispanic (62%), the number of persons sentenced for marijuana who were Black had doubled to 18% and white offenders were down to 15% with other races at 5%. These data suggest that whites are benefiting relatively more from fewer federal prosecutions. Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. This essay will reflect upon how state legal reforms have mellowed (but certainly not ended) federal enforcement.

How Do Online Conflict Disclosures Support Enforcement? Evidence from Personal Financial Disclosures and Public Corruption

Public corruption is a major concern for democracies around the world. In the U.S., states have responded to this issue by publishing personal financial disclosures (PFD) for public officials online. PFD are a conflict-of-interest disclosure designed to relieve agency conflicts between private citizens and government officials by documenting overlaps between officials’ financial interests and public responsibilities. By adopting online PFD, states must weigh the potential benefits of transparency against costs to official privacy. In this paper, I explore whether and how online PFD supports the detection and prosecution of public corruption. I present a stylized model illustrating how online PFD might lead investigators to increase case referral volume and quality. Empirically, I find that online PFD for local officials is associated with increased referral rates and greater likelihoods of prosecution conditional on referral. I conduct 126 field interviews of federal prosecutors, journalists, and state ethics commissions to understand the mechanisms behind these results. I conclude that online PFD supports the enforcement of local corruption by reducing investigation costs and enhancing public awareness of official conflicts of interest.

,,,Learning from the Jeffrey Epstein Mess: It’s Time to Add a Cause of Action for Damages to the Crime Victims’ Rights Act

The Crime Victims’ Rights Act imposes on federal prosecutors an affirmative duty to provide notice to crime victims about upcoming proceedings so that they can attend those proceedings and exercise other related statutory rights. If a crime victim is blocked from attending a proceeding, the CVRA provides an avenue for that victim to seek a writ of mandamus from the Court of Appeals. Notably, however, the CVRA does not appear to provide a meaningful remedy if the victim is never provided notice and does not find out until it is too late to undo the proceeding. Indeed, the CVRA specifically states that it creates no cause of action of any kind for its violations. Using the sorry saga of the decade-long litigation over the U.S. Attorney’s Office handling of the Jeffrey Epstein matter, this article argues that it is time to rewrite the CVRA to provide a cause of action for damages and for prevailing plaintiff’s attorney’s fees, not because money will truly compensate the crime victims, but rather to deter future violations.

Polygamy: An Early American History by Sarah M. S. Pearsall

Reviewed by: Polygamy: An Early American History by Sarah M. S. Pearsall Mark Rifkin (bio) Polygamy: An Early American History sarah m. s. pearsall Yale University Press, 2019 398 pp. When talking about polygamy in what is now the United States, the conversation usually begins and ends with the Mormons. The nineteenthcentury recognition and celebration of plural marriage in the Church of Jesus Christ of Latter-Day Saints, the church's official renunciation of it in order to end federal prosecutions and the dismantling of the church and [End Page 616] to achieve statehood for Utah, and its continuance among Mormon fundamentalists up through the present (e.g., in the Brown family, chronicled in the show Sister Wives on TLC) tend to be the frame through which polygamy appears in both scholarship and popular culture (albeit with increasing attention to cultures, practices, and principles of polyamory more broadly). Recent work, such as Peter Coveillo's Make Yourselves Gods: Mormons and the Unfinished Business of American Secularism (U of Chicago P, 2019), has done an excellent job in illustrating the significance of Mormon polygamy for understanding the relationships among heteropatriarchy, settler colonialism, and what gets to constitute "religion" in liberal formulations. While that analysis illustrates the continued value in intellectually mining Mormonism for what it reveals about the ideological networks that structure the relation between belief, intimacy, and forms of institutional authority in the United States, such a focus on Mormonism can implicitly minimize the scope of polygamy as an intellectual and political force in the longue durée of life on these lands in the wake of European contact/conquest. In this vein, Sarah M. S. Pearsall's book offers a magnificent expansion of the historical depth and breadth of polygamy. Polygamy chronicles the prevalence of polygamy as a practice and topic of public debate prior to the emergence of Mormonism while offering a rich and deeply textured account of polygamy's significance in understanding shifting configurations and struggles around family and household structures, distributions of social resources and responsibilities, and the legitimate forms that governance can take. Pearsall offers an immensely compelling, layered, and multidimensional account that illustrates how attending to polygamy in its expansiveness (largely) prior to the emergence of Mormonism opens onto ways of reframing the givenness of liberal, heteronuclear frameworks for conceptualizing and interpreting social life. The book's central argument positions polygamy less as a discrete practice than as a vehicle through which to reenvision what we think we know about intimate life, race, governance, and their coconstitution on the lands that would become the United States. In the introduction, Pearsall observes that polygamy "is a form of marriage and therefore, like monogamy, a matter of public concern structuring societies, cultures, and lineages," adding, "Marriage brings states, religious authorities, communities, and families into the most intimate of realms, legitimizing children and ordering and transmitting property and inheritance. It shapes gender, race, and rank. [End Page 617] It has therefore been critical to the exercise of religious, state, and colonial power" (7). To address histories of polygamy—including its role in Spanish, English, and French imaginings and policy and as a trope within public discourses in the American colonies and the early republic—is to come face to face with the limits of liberalism, the state form, and bourgeois notions of "family" and "household" as ways of characterizing social and political dynamics prior to the mid-nineteenth century. Pearsall ably demonstrates how the dynamics of polygamous relationships/networks and debates over them help illuminate ongoing and varied struggles over the contours, content, and scope of public authority. However, as Pearsall makes clear, questions with regard to intimate life and everyday structures of provision and care are not simply metonymic stand-ins for putatively larger matters of politics and economy. They are themselves vital sites of contestation and worlding: "Differing ideas about households were not the backdrop for the drama; they were the drama. Households were political units, as well as politicized markers of civility and authority, in the period from 1500 to 1800, whether for Native Americans, Africans, or Europeans" (9). Focusing on this "drama" as it pivots around polygamy, Pearsall argues, "allows us to see...

Direito de existência e autodeterminação dos povos indígenas diante das ameaças do Complexo de Hidrelétricas na Bacia do Juruena: O caso do Projeto da Usina Castanheira

A Amazônia tem sido palco de megaprojetos de infraestrutura e desenvolvimento, o que resulta em graves conflitos socioambientais com impactos sobre diversos povos indígenas. Nesse contexto, indaga-se sobre o respeito desses empreendimentos à legislação nacional e aos compromissos internacionais dos quais o Brasil é signatário. Para responder essa pergunta, apresentamos o estudo de um caso emblemático: o projeto da UHE Castanheira, em Mato Grosso, cuja consecução compreende uma série de documentos oficiais tais como o processo de licenciamento ambiental, inquéritos civis em trâmite perante o Ministério Público Federal e Estadual, entre outros. Partindo da análise documental e utilizando-se da metodologia da Investigación-Acción-Participativa, o presente artigo busca refletir sobre a geopolítica colonialista e neoextrativista na Amazônia, propondo uma perspectiva sobre os direitos territoriais como indissociáveis do direito de existência e analisando os conceitos de etnocídio e genocídio. Conclui-se que a violação do direito de consulta e consentimento prévio, livre e informado, somada a irreversibilidade dos danos socioambientais, revelam a incompatibilidade desse projeto em face do direito de existência dos povos. O artigo apresenta experiências de protocolos autônomos de consulta, a exemplo do Protocolo Munduruku, Protocolo Juruna (Yudjá) e Protocolo do povo Irantxe-Manoki, como exercício da autodeterminação e r-existência dos povos da Amazônia.

Accounting and the US cannabis industry: federal financial regulations and the perspectives of Certified Public Accountants and cannabis businesses owners

BackgroundCannabis-related businesses (CRBs), in states where cannabis is legal, may be unable to obtain professional financial services including banking, insurance, and accounting because of federal laws and regulations. This qualitative study investigated the following research questions.Why are some Certified Public Accountants unwilling to provide services to cannabis-related businesses?How do CRBs compensate for lack of Certified Public Accountant services?What does a certified public accountant need to know about the cannabis industry prior to engaging to provide services to CRBs?MethodsData for this grounded-theory qualitative study was gathered from twenty-three semi-structured phone and face-to-face interviews. Ten cannabis-related business owners were recruited from a convenience sample after attempting a broad recruiting effort. Thirteen Certified Public Accountants with active licenses in Colorado or Washington State participated from firms of varying size and willingness to serve the cannabis industry. The individual interviews, which lasted from twenty minutes to more than an hour, focused on the participants’ perceptions of the complexities of accounting and tax compliance for cannabis businesses.ResultsEight of the thirteen Certified Public Accountants interviewed would not provide services to the cannabis industry with the primary reason given that cannabis is federally illegal. All ten of the cannabis business owners interviewed indicated they engage a Certified Public Accountant to provide tax services. Seven out of ten CRB participants and ten of the thirteen Certified Public Accountant participants indicated that extensive industry knowledge is needed for an accountant to competently provide services to a CRB.ConclusionsCRB owners need to carefully consider the industry knowledge and experience of a potential Certified Public Accountant prior to engaging them. This study shows that US Certified Public Accountants should weigh the risk of federal prosecution and potential loss of the Certified Public Accountant license when deciding whether to serve a CRB client. The study also found that a Certified Public Accountant must commit to acquiring and maintaining substantial specialized knowledge related to tax Code Section 280E, internal controls for a cash-only or cash-intensive business, and the workings of the cannabis industry under the current regulatory conditions.

Prioritizing Accountability for Sexual Terrorism on the Global Peace and Security Agenda: An Assessment of the Way Forward from National Prosecutions of Sexual Terrorism by Boko Haram to Security Council Decisiveness

Twenty years after the United Nations (UN) Security Council adopted Resolution 1325 on women, peace and security and twenty-five years after the Beijing Declaration and Platform for Action, the prevalence of sexual violence by parties to armed conflicts continues unabated. Despite the responsibility of every State to address such crimes, conflict-related sexual violence has not been met with corresponding accountability. At the same time, national prosecutions of terrorist activities have largely focused on membership and financing of terrorist groups. Even though the majority of States have endorsed the historic 2013 Declaration of Commitment to End Sexual Violence in Conflict which provides that 'sexual violence committed in conflict must not be viewed as a lesser crime,' accountability for 'sexual terrorism' – defined in the article as conflict-related sexual violence and human trafficking utilized as a tactic of terrorism – has not garnered the same response as other terrorism crimes especially in Security Council resolutions.<br/> With the focus on Boko Haram, this article addresses the practicalities of national investigations and prosecutions in Nigeria of conflict-related sexual violence and human trafficking as acts of terrorism using Nigeria's 2011 Terrorism Prevention Act (TPA) and its 2013 amendment. Although these pieces of legislation make no express provision for accountability for sexual terrorism, the article proposes interpretations of provisions in the TPA that could be utilized to investigate and prosecute sexual terrorism by Boko Haram. The article also addresses some practical challenges faced by federal prosecutors in bringing such charges to court such as evidentiary practices requiring medical corroboration and it explores possible solutions to ensure accountability. Finally, the article juxtaposes Security Council resolutions on terrorist financing with resolutions on the nexus between terrorism, human trafficking, and conflictrelated sexual violence. It observes that, adopting resolutions pursuant to Chapter VII of the United Nations Charter, the Security Council gave terrorist financing a platform on which accountability was mandated. A similar platform has not been afforded to sexual terrorism and the article explores possible reasons. In the author's view, until sexual terrorism is given the same platform as terrorist financing, the push for domestic accountability for sexual terrorism remains a battle on an uphill road paved with good intentions.

As Forças-Tarefas do Ministério Público Federal: o discurso político punitivo anticorrupção na instituição de garantias

No presente trabalho investigou-se de que modo o discurso punitivo anticorrupção, que ensejou a formação de forças-tarefa do Ministério Público Federal, tem o potencial de comprometer a função normativa constitucional do Ministério Público como instituição de garantia. A hipótese original é a de que as forças-tarefas ensejam um conflito entre os esforços para persecução da corrupção e os direitos fundamentais estabelecidos pela Constituição. Por conta disso, apresentam potencial de instrumentalização política, comprometendo a vocação constitucional do Ministério Público. A investigação será normativa e crítica. A metodologia será a da abordagem teórica, numa perspectiva hipotético dedutiva e terá fontes bibliográficas, mas também documentais produzidas pelo próprio Ministério Público Federal.

The Trajectory of Federal Gun Crimes

Federal gun prosecutions have for decades been a growing part of the federal docket, reflecting not only the priority placed on reducing gun violence, but also a broad range of quite distinct federal priorities. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution, possession of particular weapons such as machine guns, use by drug traffickers, and individual possession of firearms by felons. Second, we describe how in practice, uses of enacted gun crimes have adapted to criminal law priorities of Congress and federal prosecutors over time. Most recently, they became prominent in immigration prosecutions, while in the 1980s, drug gangs were the priority. In so doing, gun cases provided vehicles for testing the reach of federal jurisdiction, use of federal crimes as sentencing enhancements, and boundaries between federal, state, and local enforcement. We argue federal gun crimes reflect a unique dynamic in which legislation is shaped by three forces: (1) aggressive interest group lobbying that ends in compromise on harsh punishment; (2) judges and lawmakers dichotomizing guns, as between “law-abiding citizens” and use by “thugs” and “gangsters”; and (3) prosecutorial power, magnified due to ubiquity of firearms, permitting broad federal jurisdiction, and then leveraging the discretion of federal prosecutors to utilize severe sentences to obtain plea bargains. Our overall goal is to illuminate the central, but inconsistent and complex, place of gun crimes in federal criminal law. We conclude by asking what principles could guide the development of this body of law through judicial interpretation, future legislation, and in enforcement, towards a new vision in which federal law is designed to reduce disparities in enforcement and to prevent gun violence.

Remote Criminal Justice

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom. The survey responses paint a complicated picture. They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public. Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials. These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely. Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients. Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic. Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice. It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over. Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations. Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings. If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

ESTATUTO DO CIGANO: UM MARCO LEGAL NECESSÁRIO NO BRASIL

O presente artigo trata da necessidade de estabelecimento de um marco legal no Brasil a fim de se garantir a proteção e direitos dos ciganos. Os ciganos sempre sofreram com o preconceito diante de suas tradições e cultura. Essa perseguição gerou efeitos devastadores em relação à população cigana, significando sua exclusão da sociedade contemporânea. Entretanto, medidas devem ser tomadas para se garantir a inclusão social dos ciganos, ao mesmo tempo que em que se preserve o seu direito à diferença. O problema consiste na busca do porquê de ausência de qualquer proteção legal específica à população cigana, enquanto o objetivo geral do artigo consiste, justamente, em jogar luzes acerca da necessidade do estabelecimento de um marco legal cigano. A metodologia adotada foi a de revisão bibliográfica de material (artigos, livros, matérias jornalísticas e legislação) acerca da inclusão social dos ciganos no Brasil, velando-se especialmente do método indutivo, a fim de se alcançar conclusão generalizada sobre a real situação do povo cigano no Brasil. Conclui-se que o Ministério Público Federal tem atuado em busca de conferir visibilidade às demandas ciganas, mas somente com a aprovação do projeto de lei que institui o “Estatuto do cigano” é que se estabelecerá um parâmetro e norte para a confecção e efetivação de políticas públicas em favor da população cigana no Brasil.

(in)observância dos direitos das crianças refugiadas venezuelanas em Roraima

Trata-se de artigo sobre pesquisa realizada na cidade de Boa Vista, em Roraima, no ano de 2018, com a finalidade de analisar a (in)observância dos direitos da criança refugiada venezuelana em Roraima. A metodologia utilizada consistiu na análise de casos de refúgio no Brasil e na pesquisa in loco realizada em Boa Vista. Além disso, o presente artigo apresenta dados obtidos pelo Ministério Público Federal em visitas a abrigos com crianças e expostos em relatórios. Busca-se estudar a assistência humanitária dada para as crianças e suas famílias, especialmente observada em relação ao direito aplicável.
 
 
 Recebido em: setembro/2019.
 Aprovado em: setembro/2020.

The Abuse of the Pardon Power Prevention Act Would Criminalize Politics

At bottom, this statute would effect a radical change in how the presidency is understood. Historically, the President has been viewed as an independent political actor, with democratic bona fides, who was charged with making discretionary policy judgments. Now, he would be transformed into a slow-moving, process-bound, “nonpartisan” actor. Some readers may praise this change. But we do not think such a change is in the public interest. Of course, the public interest is always contestable because no one has the institutional knowledge or widely accepted power to declare a monopoly on what is in the common good. The President should be able to make important decisions with vigor, independence, and dispatch. This proposed bill would alter the presidency such that he would now second-guess his official actions for fear of prosecution. Federal prosecutors should not be authorized to dictate what is in the public interest. Many people who read this bill may not realize its likely consequences. Others can foresee these consequences, and approve of them, because they seek to transform the presidency. All should recognize that the consequences of this bill, if enacted, will extend far beyond President Trump, or even a President Biden. The presidency has far less to fear from this bill than the 535 members of Congress would. Indeed, our concerns apply more forcefully to Congress, which does not control the apparatus of federal prosecution. In December 2019, we wrote: Consider a third hypothetical in which personal and public motivations are inextricably intertwined. Two members of Congress are engaged in negotiations about a bill. Each agrees to support the bill only after it is amended to provide $1 billion in additional spending in their respective districts. They each have mixed motives. First, they believe that the extra $1 billion will help improve the welfare of their districts—which is part of the public good, as they conceive it. Second, they understand that bringing home the bacon will help their reelection campaigns. “All politics is local,” the old adage goes. The run-of-the-mill horse-trading described in this example might be bad policy and, arguably, is a misuse of discretion. But whatever else it is, it is not bribery. If we’re wrong, almost every member of Congress could be indicted under the federal bribery statute. Indeed, if every such deal or compromise is a presumptive crime, then the Department of Justice will have the power to investigate every set of political compromises that accrue on nearly all major spending bills. Such a theory of bribery would allow the department to investigate, and later indict and seek to convict, members of Congress involved in political compromise and log-rolling. We should resist efforts to criminalize politics. This bill may seem like a prudent idea in the current moment. But the bill criminalizes normal politics; it will end with criminalizing political speech. Do critics of the current President really want to give Attorney General Bill Barr the power to prosecute congressional log-rolling? Be careful what you wish for.

Nontraditional Criminal Prosecutions in Federal Court

Who, besides the U.S. Department of Justice, can prosecute criminal actions in federal court? This Article considers this question, which has arisen recently in various contexts—DOJ’s attempt to abort the prosecution of former National Security Advisor Michael Flynn, the contempt prosecution of former Sheriff Joseph Arpaio (who received a presidential pardon), the confrontation over the court-appointed interim U.S. Attorney in New York, and a local District Attorney’s threats to prosecute lawbreaking federal law enforcement officials. Consider first nontraditional trial-level federal prosecutions. The Constitution’s Take Care and Appointments Clauses, as well as standing, preclude private prosecutions and prosecutions by states and Houses of Congress. Court-appointed interim U.S. Attorneys may oversee federal prosecutions, and court-appointed special prosecutors may prosecute criminal contempt cases. However, court-appointed attorneys likely cannot undertake broader responsibilities. Consider next criminal appeals. While the Supreme Court has acknowledged the possibility of a state’s appellate standing where DOJ declines to appeal a federal criminal decision holding a state statute unconstitutional, that precedent is dubious. Moreover, even if a state’s standing is sometimes proper, the case for appellate standing of a House of Congress is weaker. Finally, consider state prosecutions in federal court. A state should have standing to appeal criminal cases to the Supreme Court, and to pursue properly removed state criminal prosecutions in the lower federal courts, as should any properly designated state governmental entity. To the extent a state allows private prosecutions, aggrieved individuals ought to be able to pursue such prosecutions if they are properly removed.

The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I: 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II (Here): 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. The “Robinarchy” was a caution against executive corruption, and the first Congress focused on presidential corruption of finance, a president who would abuse the removal power to raid the Treasury and build a “throne.” 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. Madison withdrew his proposal, but the debate elicited that Madison thought the House had not reached any consensus for “at pleasure” tenure, and the debate reflected more openness to executive design and independence from presidents. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (with relatively independent prosecution under Treasury and arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.

Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn

This amicus curiae brief is submitted in United States v. Flynn, the criminal prosecution of former National Security Advisor Michael Flynn. It is authored by Professor Andrew Manuel Crespo and attorneys from Protect Democracy, on behalf of former federal prosecutors and high-ranking Department of Justice officials. The brief argues that the court has not only the authority but also the responsibility to review the government's motion to dismiss the case against Flynn with care, and to deny the motion if a dismissal would be contrary to the public interest. The brief analyzes the substantive defects in the government's argument that Flynn's acknowledged lies to the FBI were not material within the meaning of 18 USC 1001. And it explains why all of the publicly available evidence to date indicates that the motion to dismiss was motivated by a desire to satisfy the president's personal political interest, and thus contrary to the public interest as a matter of law.

Charges of Misconduct by Union Officials

News of connections between unions and organized crime, racketeering, and other sordid activities has waned in recent years. However, organized labor is far from squeaky clean in the twenty‐first century. As many Management Report readers may be aware, a former United Auto Workers vice president was recently charged with conspiracy to commit money laundering and wire fraud. Federal prosecutors have also charged the former UAW president and several others with embezzlement of more than $1.5 million in union funds that was spent on “lavish lifestyles.” The allegations about the UAW are so complex that the U.S. Attorney's Office has recently suggested that federal oversight of the UAW is not out of the question—a drastic measure most recently seen in the recently concluded government regulation of the Teamsters.