Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.
—Judge Learned Hand
Recently, on this blog, I posted a series of legal questions arising in connection with well known allegations that while in office (former) Secretary of State Hillary Clinton violated a federal statutory provision governing record keeping, i.e., 28 United States Code Section 2071. [Tillman’s New Reform Club post.] Since then my post has been graced with a number of responses, including one by Professor Rick Hasen at Election Law Blog, and another by Michael Stern at Point of Order blog. Hasen and Stern are both prominent commentators. I am gratified that my post caught their attention. That said, their responses were somewhat critical (although not less welcomed for that), and here, I reply to their responses (which is as it should be).
Professor Hasen wrote:
I’m hearing more talk from Republicans convinced that there will be such an indictment. Seth Barrett Tillman has even blogged on what happens if such an indictment strikes at various points in the election. Tillman’s post got [Professor] Jack Balkin’s attention, who says that the general issue deserves some academic attention.
Perhaps so. But this seems much more likely to be a political problem for Clinton than a legal one, given indications from the White House that no indictment appears in the cards. The immediate political question will be whether Bernie Sanders comes down heavier on this issue. At first he said no more about the “damn emails,” and now he said that it its [sic] a “very serious issue.” But whatever Sanders throws will be much less than what I expect to see from Republicans after Clinton gets the Democratic nomination.
Professor Hasen wrote that “Seth Barrett Tillman has even blogged on what happens if such an indictment strikes at various points in the election.” But that is wrong. That is precisely what I did not do. Rather, I only raised the discrete legal issues which the justice system would have to address and answer in some fashion should candidate Clinton be indicted, and/or convicted in consequence of judicial proceedings, and/or impeached by the House, and/or convicted by the Senate in consequence of House impeachment proceedings. I further noted how these issues mutate depending on when formal judicial or impeachment proceeding might begin and end. My goal was to start a conversation (or a series of conversations), not to end a conversation by providing answers (few of which I have).
More importantly, Professor Hasen wrote that although the issues I raised in my post “perhaps”—only “perhaps”—“deserve some academic attention,” it “seems much more likely to be a political problem for Clinton than a legal one, given indications from the White House that no indictment appears in the cards. The immediate political question will be whether Bernie Sanders comes down heavier on this issue.” (emphasis added) Hasen’s statement is problematic in several ways.
First, commentators hardly do the public a service by focusing on “immediate” problems or the short run. Certainly the short run deserves timely discussion, but there is no reason to limit our horizons to such discussions.
Second, the relative probability of political or campaign-related risk facing Clinton (from Senator Sanders and Republican operatives) versus the legal jeopardy Clinton faces from a potential federal indictment is not interesting or relevant. Why? The commentariat is not faced with a one-time game show type choice, whereby if we comment on political risks, then we are left without means, time, or opportunity to also discuss consequential legal risks. The internet’s bandwidth (including Professor Hasen’s Election Law Blog) is considerably wider than that. We can do both, and we should do both, as long as we are convinced that there is value in doing so.
I think what Professor Hasen is really saying here is not that the relative risk facing Clinton—between campaign-related risk in connection with adverse publicity and political discussion versus indictment related risk—is relevant per se, but rather it makes more sense to comment exclusively on political risk because the true probability of a Clinton indictment in minuscule. To put it another way: an indictment is a Republican pie-in-the-sky fantasy. Hasen’s analysis—even if he is correct about the actual likelihood of a federal indictment—is still (in my view) incomplete. It is not just the probability of a Clinton indictment which should matter to us, it is also the nature of the consequences which flow from such an event (even if very unlikely) and the gravity of any associated harms to our polity. Our home is unlikely to be destroyed by fire or flood, yet people still buy insurance, and responsible people investigate probabilities, harms, and costs. Similarly, a fully informed analysis of Clinton’s position (a/k/a our position, the public’s position) requires much more than a casual projection about the likelihood of Clinton’s being indicted.
I am sure Clinton, Biden, the President, and the Democratic National Committee have commissioned fully fleshed-out memoranda on this subject. And if it is good enough for them to see a developed legal analysis, then it seems right and proper—in a democracy—for the rest of us to have access to the same, or, at least, to something reasonably similar, and in a timely fashion before we cast our votes. Of course, Professor Hasen might know (or believe he knows) the answer to all the legal queries I posed regarding the legal consequences of a Clinton indictment or impeachment. If he does, let us hope he shares those answers with us soon. Until then, let us have no more talk about “perhaps,” and instead, let us focus on practical and timely solutions towards fully informing our fellow citizens who want and need answers.
Michael Stern wrote:
Professor Seth Barrett Tillman has a new post which compares the amount of attention given to the question of whether Senator Cruz is a “natural born Citizen” within the meaning of Article II, section 2, cl. 5, of the Constitution (a lot) with that given to certain legal issues surrounding a potential indictment of former Senator/Secretary Hillary Clinton (not much). Personally, I can think of a number of reasons for this disparity, the most obvious of which is that the citizenship issue has been publicly and repeatedly raised by another presidential candidate (I forget his name). If Senator Sanders, for example, were to raise one of Tillman’s legal issues in a debate with Clinton, I bet the legal commentariat would be racing to the blogs to express their views.
Stern’s focus on the sociology and motivations of the commentariat is odd. I am not suggesting his analysis here is wrong, only that it does not seem to matter very much. Responsible commentators should focus on questions and answers (at least, to the extent we can answer the questions) that are valuable. Certainly, an issue raised by a candidate may be valuable, but our discussing the same issue is not inherently less valuable because the issue was first raised by the most humble newly registered voter. Likewise, commentators should eschew being wholly guided by what issues are raised by candidates. Candidates might very well have strategic interests not to raise an issue, or to delay raising the issue until it benefits them—as opposed to the public—most. To put it most simply, if the issues I raised in my New Reform Club post are valuable, they are not the less valuable because they have not yet been raised by a candidate. To allow candidates to set the agenda for all political and legal discourse invites disaster.
Stern also wrote:
I think we should be leery of prosecutors or courts inserting themselves into a presidential election, whether it involves Cruz or Clinton [Tillman adding—or Perry]. Unless the legal issue is one that is beyond any reasonable dispute, the risk of politically motivated actors using lawsuits or prosecutions to disqualify candidates seems too high. As Professor Tillman has remarked in a different blog post focusing on the citizenship issue, “ties should go to the runner,” i.e., close questions should be resolved by letting the voters decide.
In a prior post, I wrote that in evaluating election law provisions, including qualifications, we should allow ties go to the runner, expand the democracy, allow the contested candidate to compete, and allow the voters to decide. I stand behind all of that. But in a conflict, should there be a conflict, between a criminal prosecution and an election, we have two competing principles: one, protecting the democratic process from wrongful manipulation by prosecutors and courts, and two, the rule of law, applying the criminal law without fear or favor to all, even against those who are politically connected. I certainly do not want prosecutors and courts pre-empting the voters in elections. But I also do not want a candidate’s participation in an election to amount to immunity in regard to established law, particularly where other (less fortunate) people have faced similar sanctions for similar conduct. This is a genuine conflict, it is not one which I have opined on in the past, and there are no easy solutions.
But it seems to me that whatever the solution is ... it is not the one Michael Stern suggests: i.e., No prosecution “[u]nless the legal issue is one that is beyond reasonable dispute.” The “beyond reasonable doubt” standard (assuming this is what Stern meant) is applied by a federal jury at the close of a case. As far as I know, and I am certainly no expert on criminal law, it is not the standard used by a federal prosecutor to initiate a prosecution by indictment or otherwise. In that situation, the customary standard is considerably lower.
The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction ....
United States Attorneys’ Manual Section 9-27.220: Grounds for Commencing or Declining Prosecution (1997). It seems to me that to shift the “beyond reasonable doubt” standard onto the prosecutor prior to the start of trial is to create a whole new shadow legal order available only to those running for political office. Cf. id. Section 9-27.260: Initiating and Declining Charges—Impermissible Considerations (“In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be influenced by: The person’s race, religion, sex, national origin, or political association, activities or beliefs ....” (emphasis added)). Embracing Stern’s position might not entirely kill the rule of law in America, but it will certainly substantially dent actual and perceived political equality before the law. That’s a high price. Maybe too high. Addendum: Feb. 3, 2016 (6:50 AM Dublin time): If there were an established prosecutorial tradition for delaying investigations/prosecutions in such circumstances as allegedly threaten candidate Clinton, she certainly should have access to commensurable benefits which others have received in the past. But that is a far cry from creating new law ad hoc.
I know that my merely raising the legal issues which are likely to arise from a Clinton indictment or impeachment does not interfere with either democracy or “letting the voters decide.” Quite the opposite. Voters who have been fully informed about the legal jeopardy Senator Clinton may or may not face under Section 2071 exercise their voting rights in a more meaningful fashion than they otherwise would. If you do not agree with that, then tell me why.
My prior post: Seth Barrett Tillman, Two Presidential Candidates: Consistent Treatment?, The New Reform Club (Jan. 29, 2016, 9:01 AM).
Welcome Election Law Blog and Point of Order blog readers.
See Glenn Harlan Reynolds, Glenn Reynolds: Hillary’s delusional media courtiers, USA Today, Mar. 31, 2016, 11:42 AM.
See Glenn Harlan Reynolds, Glenn Reynolds: Hillary’s delusional media courtiers, USA Today, Mar. 31, 2016, 11:42 AM.
 United States v. Carroll Towing Co., 159 F.2d 169, 173 (1947) (Hand, J.).
 Notice how Professor Hasen uses “after” as opposed to “should.” Why does he so casually assume that Clinton will win? Odd.