What do you mean?
When prosecutors consider whether to file criminal charges, they--almost unconsciously--interpret a statute's meaning. This can be the difference between being prosecuted and not.
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 California, a Russian national, living in Sacramento, entered a guilty plea to material support of terrorism by sending $13,000 to Hayat Tahrir al-Sham, a foreign terrorist organization in Syria. The group originated as an Al-Qaeda chapter during the Syrian Civil War but later splt from the group.
*In the Middle District of North Carolina, a man from Concord, was found guilty by a jury of committing two hate crimes. In one instance, the man shouted racial slurs and threatened the life of a Black man. In the other instance, the man attacked a Hispanic man while making racial slurs.
*In the District of Colmbia District, a man who spent 30 years bringing tens of thousands of kilograms of cocaine into the United States was sentenced to 21 years. During this time, the man worked with multiple drug cartels. In his role, he oversaw the movement of vast quantites of cocaine from South America to the United States and money from the United States to South America.
What is the meaning of this?
Applying facts to law is the cornerstone of legal work, particularly criminal law. When I teach Criminal Law, we spend much time discussing whether certain facts violate the elements of the crime. For example, a burglary requires that the offender unlawfully enter a “building or inhabitable structure.” An inhabitable structure, at least under Missouri law, can, in the right circumstances, be a vehicle, vessel, or structure. One circumstance that makes a vehicle an inhabitable structure is that it is used for overnight accomodation. If I spend a night sleeping in my car, is it forever an inhabitable structure? As an initial matter, prosecutors must interpret the law to determine if the facts fit. They can interpret the law broadly and say that spending one night in my car will forever make it an inhabitable structure. Or, they can take a narrow interpretation and say that it is only an inhabitable structure when I spend the night in the car.
In order to deal with new and emerging crime problems or to address high-profile questionably legal conduct, federal prosecutors will often emply broad statutory interpretations. These interpretations expand the reach of already broad criminal statutes. With limited constraints on prosecutorial discretion, there is little to stop federal prosecutors from engaging in broad interpretations. Defense attorneys can advance arguments but trial judges and juries often reject them. Following a trial, defense attorneys have more success as appeals court judges can be more willing to push back against the broad interpretations. Ultimately, however, the United States Supreme Court has been the most consistent at limiting expansive prosecutorial interpretations.
The Supreme Court, since the late 1980s, has limited the ability of federal prosecutors to interpret statutes broadly. It began in a public corruption case when federal prosecutors charged a Kentucky public official for mail fraud. The prosecutors argued that the public official used the mail to defraud the people of Kentucky of their “intangible right to honest services.” Prior to the Supreme Court’s decision federal prosecutors had used this theory successfully in multiple cases. Despite this, the Supreme Court, in a 7-2 decision that crossed ideological lines, limited mail fraud to defrauding people of property rather than intangible rights. Unhappy with the decision, the Justice Department went to Congress and Congress specifically included the intangible right to honest servives as mail fraud.
Ten years later, federal prosecutors pursued a bribery case against a labor union that gave the Agriculture Secretary gifts. Unable to prove a direct quid pro quo, the government proceeded on a theory that any gift was sufficient. In a 9-0 opinion, the Supreme Court rejected this broad interpretation citing the fact the a President who acceptd a jersey from a championship sports team might get prosecuted. This rationale hinted at the deeper problem: the problem of nearly unlimited prosecutorial discretion.
It would take another decade and several more Supreme Court decisions before the Court made its rationale more explicit. In the early 2000s, Congress criminalized the depiction of animal cruelty in videos. This was challenged on First Amendment grounds. The challengers argued that the statute could be used to prosecute producers of nature videos where one animal kills another for food. Prosecutors responded that they would never interpret the statute so broadly. In an 8-1 decision, the Court stated, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”1 The Court pointed out that when the law was enacted, the executive branch promised to use it only in extreme cases yet, in the case that reached the Court, both sides conceded the case was not an extreme instance.
A decade after that, prosecutors set their sights on people who worked on then-New Jersey governor Chris Christie’s staff. When a local official refused to support Christie, Christie’s staff directed a bridge into New York City be obstructed, claiming it was for a traffic study. The conduct created massive traffic problems and generated significant media attention. Eventually the back story emerged. Federal prosecutors charged Christie’s staff with fraud claiming Christie’s staff deprived the Port Authority, who received funds from the bridge, out of money. Federal prosecutors prevailed until they reached the Supreme Court. The Court determined, in a 9-0 opinion, that the object of the scheme was not to defraud the Port Authority; it was political retaliation. Without fraud as the ultimate object, federal prosecutors, according to the Court, could prosecute any public official for anything.
Since 2020, the Court has applied this rationale in four more cases. The United States Supreme Court recognizes the broad discretionary power prosecutors possess and that prosecutors are the first to interpret criminal statutes. In a system where prosecutors have few checks on their decisions and can be used for partisan political purposes, the Court has become one of the only consistent checks on this power. Their decisions are either unanimous or nearly unanimous. In a starkly divided legal world, this is an area of agreement: criminal statutes should be interpreted narrowly.
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!
Justice Briefs is a weekly newsletter focusing on federal criminal prosecution. All opinions expressed belong to the author and are not necessarily those of any past or present employer. If you would like to read about the origins of federal criminal prosecution, you can get a copy of my book here: Constitutional Inquisitors: The Origins and Practice of Early Federal Prosecutors
United States v. Stevens, 559 U. S. 460 (2010)