Symbolic Prosecutions and Foreign Affairs
When the Justice Department prosecuted HAMAS leadership and Russian military attackers it was not to actually prosecute them but to further US foreign policy. This has a long history!
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Justice in Brief
In the Eastern District of New York, one of the co-founders of the Sinaloa drug distribution cartel was arraigned on multiple charges from his leadership of the group and its importation of fentanyl into the United States.
In the Middle District of Florida, several defendants were found guilty at trial of acting as foreign agents for Russia without registering. Among other activities over seven years, the group attempted to influence the outcome of the St. Petersburg, Florida, mayoral election.
In the Districts of North Dakota and South Dakota, a Canadian man entered guilty pleas to counts in each jurisdiction to destruction of an energy facility. Using a high-powered rifle, he hit substation and pipeline facilities, disrupting power for residents.
National security prosecutions and foreign policy: 18th century style
When the Justice Department initiated criminal proceedings against HAMAS leadership and Russian military computer hackers, it knew that there was little chance the cases would ever proceed beyond that stage. Instead, the purpose behind the charges was more symbolic. The cases sent a message to the world. The charges were meant more as a foreign policy statement than a criminal justice statement. Though this may sound a strange reason for pursuing criminal charges, it is hardly novel. In fact, many of the first federal criminal prosecutions in United States history had foreign policy implications. The government often pursued charges at the behest of a foreign nation. One such case occurred in 1806 when two people were charged with violated United States neutrality when they assisted in a expedition to liberate Venezuela from Spanish rule.
In 1805, Francisco Miranda arrived in New York from London. Miranda was well-known to Americans and was something akin to a soldier of fortune. A Venezuela native, Miranda had spent the last several years attempting to secure financial backing for an invasion of his native country. He hoped to liberate his home country from Spanish rule. Not finding success in London, he set sail for the United States as its relations with Spain were strained.
When Miranda arrived in New York, he met with William Smith, the surveyor of the Port of New York. In addition to his government post, Smith was married to Nabby Adams, the daughter of John and Abigail Adams. Smith was the perfect connection for Miranda. As the surveyor for the Port of New York Smith knew the ship captains and their crew. This provided an ample supply of potential recruits. As the former president’s son-in-law, Smith also had access to people willing to finance the expedition. With those two logistical matters covered, Miranda only needed approval.
After working with Smith, Miranda departed for Washington, D.C., to meet with Secretary of State James Madison. The duo met and discussed Miranda’s planned expedition but left with differing perceptions. Both understood that Madison had not given the expedition his official blessing; however, Miranda left believing that Madison had implicitly approved it. Madison, neither in public or private correspondence, ever endorsed this view. Instead, he held the position that Miranda proposed expedition was never sanctioned.
Madison could not sanction the plan because of an ongoing dispute with Spain over the Louisiana Purchase in 1804. The United States highly valued the Mississippi trade route the emptied into the Gulf of Mexico at Louisiana. After years of negotiating, the United States gained access to it by completing a treaty with Spain in 1795. Spain revoked the treaty in 1798 and the ceded the land to France in 1800 with the understanding the France would not sell it. France, of course, sold it to the United States in 1804. Throughout the process, Spain maintained control over the territory. With the sale, Spain protested, leading to the United States severing diplomatic communications. Should Spain believe the United States supported an attack on Spanish territory, war would certainly follow.
After the Madison meeting, Miranda returned to New York to embark on the expedition. He worked with Samuel Ogden, the brother of former United States Attorney for New Jersey Abrahamo Ogden. Samuel Ogden arranged for the armoring of Miranda’s vessels and helped recruit the 180 sailors and soldiers. With everything arranged, Miranda departed with the approval of the Port’s surveyor, William Smith.
None of this escaped notice of the Spanish consul in New York. Soon after Miranda’s departure, the consul registered a formal protest through the French minister. Though they might have preferred to do so, Madison and President Thomas Jefferson could not ignore the matter.
With the Justice Department still 65 years away and the Attorney General serving more as a legal advisor than as a chief law enforcement official, Madison instructed the United States Attorney for New York, Nathan Sanford to launch an investigation with an eye toward prosecution. This required Sanford to work with District Court judge Matthias Tallmedge. The duo obtained sworn statements from several involved, including Smith and Ogden. Sanford forwarded copies to Madison, who was not a trained lawyer, to newly-confirmed Attorney General John Breckinridge. A key Senator who supported Jefferson’s legislative agenda, Breckinridge was, what law professor Jed Shugerman terms, a politico. His role was to give Jefferson legal advice that conformed to Jefferson’s policy agenda. Not surprisingly, therefore, Breckinridge concurred that a prosecution should commence against Smith and Ogden.
In his response to Madison, Breckinridge identified the problem that ultimately led to the case’s downfall. Smith and Ogden had no personal knowledge of what transpired between Miranda and Madison. They could credibly argue that they believed the expedition was lawfully authorized by the Jefferson administration. This meant they lacked the requisite criminal intent. The Smith and Ogden defense team pushed even subpoenaed Madison to support their theory. Though the court ordered Madison to appear, Madison did not attend, stating his government service required he remain in Washington.
It is unclear whether the jury found the defense credible or not as the jury was predisposed to find the duo not guilty. Factional politics led to a jury biased against the Administration. The relationship between Jefferson and his first Vice President, Aaron Burr, had never been good. When Jefferson refused to keep Burr as his vice-presidential candidate in 1804, Burr became a bitter Jefferson opponent. With a strong political base in New York, the US Marshal who selected the jury was loyal to Burr. He packed the jury with Burr supporters.
Regardless of the jury’s verdict, however, Jefferson found the outcome just. Smith and Ogden, according to Jefferson, were small players and their offenses did not warrant severe punishment. The Marshal’s conduct also gave Jefferson cause to replace the Marshal with someone more supportive of Jefferson. Most importantly, however, was that the prosecution exonerated the Administration from complicity in the now-failed Miranda expedition. This prevented Spain from escalating its dispute with Jefferson’s government.
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!