Interpretive Differences
At the nation's founding, the first prosecutors did not feel compelled to follow the Administration's interpretation of criminal statutes.
Welcome to the first substantive issue of the New Year! I have taken the last couple of weeks to re-think and revise the Justice Briefs format. My hope is that this will increase interest and interaction! The first thing you will see is a short summary of the newsletter’s purpose. Second, you will see captions of selected news from DOJ’s criminal activities from the previous week. The third section will feature the headline article. Finally, I have added a comment button to the bottom. I hope you will use it!
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the Eastern District of New York, which encompasses Long Island, a construction company entered a guilty plea for causing a worker’s death. The company failed to safely maintain a metal structure used during the construction process. This violated Occupational Safety and Health Administration regulations.
*In a multi-district case, the Justice Department’s Fraud Section obtained a four-year prison sentence in an investment fraud case. Defendants created a sham corporation that purportedly manufactured electric vehicles. The Defendants obtained millions of dollars from unsuspecting investors.
*In the Southern District of Texas, which sits on the southern border with Mexico, several defendants entered guilty pleas to human smuggling and money laundering. They would collect migrants at the border, accept payment from them, and then transport them further into the United States. The transportation conditions endangered the lives of those smuggled.
Hamilton versus Parker on Neutrality Enforcement
One might think that when a President appoints someone as United States Attorney that the appointee would unquestioningly support the Administration’s legal interpretations. Yet this is not always the case, as an example from the federal government’s early years demonstrates. In the 1790s, France fought Great Britain and other European nations. The fledgling United States sought to maintain its neutrality in the conflict. At President Washington’s urging, the Congress passed a neutrality act in 1794. How to apply it to actual circumstances required the administration to determine what conduct it actually prohibited.
Alexander Hamilton, serving as President Washington’s Treasury Secretary, favored the British in its conflict with France as Hamilton’s financial program for the United States depended upon British trade. Hamilton also knew that many Americans saw the French Revolution, which included the war with Great Britain, as replicated the American Revolution. Many Americans supported the French cause and willingly assisted if they could. From a legal and foreign affairs standpoint, however, American involvement on France’s behalf could draw the United States into the war, something it could not do. Thus the Washington Administration had to enforce its neutral position by prosecuting those who violated neutrality.
The initial problem such enforcement presented was that there was no positive law prohibiting Americans from supporting either side in the war. Despite this, the government spent 1793 attempting to prosecute neutrality violators. Their test cases failed to secure convictions but managed to keep the United States out of the war. When the third Congresss convened in late 1793, President Washington informed Congress of the problem posed by neutrality enforcement and asked Congress to act. Much like today, Congress waited until the very end of its session to respond as partisan bickering delayed the matter. Ultimately, Congress passed the Neutrality Act in early June of 1794.
The 1794 Neutrality Act consisted of ten sections but section three posed the greatest interpretative challenge. Section three prohibited:
within any of the ports, harbors, bays, rivers or other waters of the United States, fit[ting] out and arm[ing] or attempt[ing] to fit out and arm or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state to cruise or commit hostilities upon the subjects, citizens or property of another foreign prince or state with whom the United States are at peace…
The question arose of what it meant to furnish the vessel with the intent that it be employed in the service of a foreign state. Must it be armaments? Or, could loading horses on board qualify? Assuming armaments were included, would defensive armaments also qualify? Hamilton, who oversaw the customs collectors who were tasked with identifying violators, favored a broad interpretation that included any effort to assist a French vessel. Not all federal prosecutors took the same view.
Thomas Parker was the second United States District Attorney for South Carolina. He likely received his post based upon a recommendation from his predecessor John Julius Pringle. Parker’s political allegiance is a mystery. His interpretation would differ from Hamilton’s yet when Thomas Jefferson assumed the presidency, he identified Parker as a Federalist but not one who should be replaced.
The differing interpretations emerged when a French citizen purchased an American ship assuming the ship would not fall under the Neutrality Act’s provisions. He loaded the ship with goods and installed several cannon for, what he claimed was, self-defense. The French citizen sailed from the Port of Charleston but was forced to land in Norfolk, Virginia. There government authorities detained the vessel. The French minister to the United States protested the seizure, citing Parker’s legal opinion that defensive armaments were excluded from the prohibition. When Hamilton learned of this he called Parker’s interpretation “a most unfortunate & mischievous error.” Hamilton found the interpretation “confounding” and instructed the Charleston revenue officials that “it must not govern [their] conduct.” He also asked Secretary of State Edmund Randolph, the former United States Attorney General, to instruct federal prosecutors on the proper interpretation.
Whether Randolph issued those instructions is unknown but Parker never initiated any criminal prosecutions in that matter or in any other involving the arming of French vessels. Despite Hamilton’s displeasure, he did not request Washington replace Parker. In fact, Parker would remain South Carolina’s federal prosecutor until his death in 1820, serving the first five presidents.
The incident shows that federal prosecutors were expected to adhere to the Administration’s statutory interpretations but contrary interpretations did not require removal. This gave federal prosecutors independent authority to interpret statutes in the manner they saw fit, even if it contradicted the administration’s preferred interpretation. Of course, this was a single incident in a relatively minor situation. Would the administration have acted differently if Parker applied his interpretation to a more serious situation? One in which the British threatened a reprisal? The answer to that is uncertain as the question of whether the president could replace a federal prosecutor had yet to be decided.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!
Sources:
Neutrality Act of 1794, Library of Congress, p43.