Mensch tracht, un Gott lacht

Tuesday, February 02, 2016

Litigating (former) Senator Hillary Clinton’s Legal Woes: A Response to Professor Rick Hasen (Election Law Blog) and Michael Stern (Point of Order blog)

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[1]

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.[2]] Since then my post has been graced with a number of responses,[3] including one by Professor Rick Hasen at Election Law Blog,[4] and another by Michael Stern at Point of Order blog.[5] 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[6] 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. Thats 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.



Tim Kowal said...

"I think we should be leery of prosecutors or courts inserting themselves into a presidential election, whether it involves Cruz or Clinton."

Suggesting Cruz's water is nearly hot as Clinton's is a useful bit of contrast, and a bit of charity on Prof. Tillman's part, it seems, to bring some goodwill to the table -- 'hey, we all gots problems.' But let's not get carried away. The right's problems with Cruz are self-inflicted -- conservatives seem generally to care about these issues apart from their politics (if I may speak autobiographically). As Seth adds, Rick Perry can be added to the list, and his problems seem a bit less legally sincere. But going down that road, we ought not omit Scott Walker, target of the egregious John Doe investigations.

Could be my self-selecting of news sources has caused me to miss similarly-situated Democratic targets, but it does seem interesting that facing a real prima facie case of criminal wrongdoing by the Democratic candidate (whom they presumably prefer), left-leaning law profs express a studied disinterest in the legal effect on the political process, content only with the political effects. Could it be that the latter serve Democratic interests well enough already?

geek49203 said...

Computer geek notes -- the href of your footnote links in the article lead to the C: drive of your computer. Which of course it doesn't find.

Kaiser Derden (aka TDL) said...

If the FBI recommends indictment (and they will leak it if the DOJ doesn't follow thru) ... the effect will be almost as bad an actual indictment ... plus, the GOP candidates can use it ... "My DOJ will take the FBI's advice" ...

SurferDoc said...

Hillary will skate, as Clintons usually do. The hurdles to indictment are all Democrat loyalists who will not find any "criminal wrongdoing".

cognito said...


The Rule of Law is dead in America. Ask Lois Lerner.

Hillary will never be indicted. There will be flack from the DOJ and especially the FBI but once the ultimate deciders have decided to crucify the Rule of Law in America, none of that flack will come to anything.

Kiss America good bye.

Pettifogger said...

1. The probability of harm.

It was virtually certain that enemies of the US would get access to secrets if Hillary used an unsecured server.

2. The seriousness of the harm.

As to some of the messages, the lives of agents are on the line. Any middle schooler could have foreseen that.

3. The burden of precaution.

All Hillary need have done is use an official email account. The burden is that it would then have been harder to avoid FOIA obligations. Since when does a desire to evade legal obligations justify avoiding other legal obligations?

kevino said...

Standard tricks used by the Clintons include:
1. An investigation is not called for or an indictment should not be made unless proof is produced beyond reasonable doubt. How can we prove that without an investigation and trial? You can't, that's the point.
2. Lie, obfuscate, and delay. Avoid discussion of the offense "until all facts are known". That's impossible since the Clintons won't allow an investigation.
3. When the truth finally comes out, the response is: "That is old news". "But we never talked about it". "Old. News."
4. Even when caught red-handed, ignore the issue: "We are busy doing the People's business".

Sec. Clinton, because she's running for President, will not be indicted. The results of the investigation will be loaded onto Lois Lerner's laptop and destroyed. At worst, one or two designated flunkies will be offered as scapegoats.

She's too big to jail.

The Law means nothing.

Bernard Brandt said...


General David Petraeus was indicted for a single violation of 18 U.S.C. § 1924. He entered into a plea, was fined $100,000, and was forced to resign from his position as Director of the CIA as a result of that indictment and plea. Permit me to offer a link to the text of that statute:

Permit me also to quote from the first section of that statute:

"Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both."

May I suggest that it is eminently obvious that former Secretary of State Clinton, in removing and retaining any number of classified documents on her e-mail server, which was an an unauthorized location, is indictable for numerous violations of 18 U.S.C. § 1924.

I must admit that I have no hope that she will be indicted for her many felonies, or for her manifold incompetences. But that it because I currently believe that we have the best system of federal criminal justice that money can buy.

If, however, you are party to the efforts to prevent her from being indicted, then may I respectfully suggest that you are worthy of damnation. At the least, you give justification to those many who are repeating those memorable lines from Shakespeare Henry IV, Part II: "The first thing we do, let's kill all the lawyers." Just sayin'.

Seth Barrett Tillman said...

You wrote above: "If, however, you are party to the efforts to prevent her from being indicted, then may I respectfully suggest that you are worthy of damnation."

Who is "you" here?

Is "you" the reader?
Is "you" the author of the blog post (Tillman -- me)?
Is "you" the author of the prior comment (Kevino)?

How does your post connect (in any way) to my post or to anything on the comment thread? It seems wholly unrelated. You might just as well be selling golf ball.


JimB said...

I always thought that the leaders in a community should be held to higher standards than the hoi polloi.