Out On A Limb

 I never practiced criminal law; never even pretended to. My first encounter with law at all, in law school, was common law. The law of property, of torts, of contracts; all rooted in common law concepts. The same was true for criminal law: common law concepts like mens rea were paramount. But it was impressed upon me that there were no common law crimes; not in America. Assault might be a common law tort, but criminal assault was a statutory matter, or it wasn’t a crime at all. 

"Here’s what happened: After the FBI communicated with the Democratic lawmakers, prosecutors in Pirro’s office reached out to them to follow up," Sargent wrote. "Slotkin’s attorney, Preet Bharara, directly asked prosecutors what statute the Democrats had allegedly violated to prompt the criminal inquiry, according to sources familiar with these discussions. The prosecutors could not name any statute, the sources told me."

“'What is the theory of criminal liability?' is the question that was posed to the prosecutors, one source said, adding that 'no answer was forthcoming.'"

Prosecutors went forward in their attempt to indict the members of Congress without naming any violated statute, and Sargent said that it still hasn't been definitively confirmed what statue they used in their ultimately doomed grand jury hearing.

"The failure to name a relevant statute when directly asked to do so by the lawyers for the accused suggests prosecutors didn’t think a criminal prosecution was warranted or doubted there was probable cause to think the Democrats had committed a crime," Sargent wrote. "In fact, one source familiar with these discussions tells me the prosecutors’ general tone in them suggested they were making the sort of inquiry that normally comes at the very outset of the investigative process."

One of the sources said that prosecutors – neither of whom had much prior experience – seemed to be at the "very preliminary" stage in their investigation when they presented their evidence to a grand jury, and Sargent said that's a worrisome sign.

"For the DOJ to seek an indictment so soon after conversations like those suggests something or other prompted the rush to indict, perhaps a word from on high that — let’s go way out on a limb here — had little to do with facts and law," he wrote. "Legal experts tell me it’s odd for prosecutors to fail to state any theory of criminal liability and then attempt an indictment anyway so quickly."

While this effort, like others before it, collapsed in clumsy defeat, Sargent warned that Trump would continue abusing his authority to punish his enemies.

"There’s always bad news in the Trump era [but] a dynamic has kicked in that is oddly helpful to him," Sargent wrote. "Thanks to the knee-slapping, comic-relief-inducing nature of these failures, the authoritarian abuses underlying them risk being seen as less threatening than they actually are. That could potentially disarm us for the next round, which will surely come."

The first lesson I learned in law school was that even when the client said, “I’m in a bad mood and I want to sue,” that wasn’t enough. Most of my work was defense, and the first thing we analyzed was what violation of law was alleged. The classic scene is in “The Dark Knight,” when Batman has single-handedly extradited the mob’s money man, and prosecutors have to decide how to charge him. After a few questions of the prisoner, they hit upon it:  RICO. Now, that’s pure fiction, but it’s pretty much how it works. You can’t put someone in jail and just say “Judge, he’s bad man, and he done wrong.”

But that’s basically what these real life prosecutors did. They used the grand jury for a fishing expedition. They couldn’t even present a criminal statute violation. They just said, “Verdict first, trial afterwards!” I know I’ve quoted the Queen of Hearts before to mock a legal effort, but this time it’s the absolute truth. “Give us the indictment, and we’ll find the crime!” That is even less like due process than what the Queen of Hearts demanded.

You cannot accuse someone of a crime without having a criminal statute to show they violated. The common law tort of assault is an offensive contact (offensive to a reasonably prudent person). If I can prove that against you in court, I’ve proven a case for damages. But criminal assault requires proving the elements of the relevant statute for assault. Even if I sue for the tort, I have to allege the elements of the tort. I can’t just say you did something to me to be established as an undetermined tort at sometime in the future. That’s essentially what Trump days over 60 times in 2020: he alleged “fraud!”, but couldn’t establish even one element. He repeatedly said “Let me do discovery and I’ll find something!” And the courts repeatedly threw out the cases, because it doesn’t work that way. But Trump at least alleged fraud. Here, the prosecutors alleged a crime to be named later. That’s the very definition of a kangaroo court. Recall the @trial” scene in “The Dark Knight Rises, when Gotham City has devolved into chaos and anarchy. The charges are all “We don’t like you!,” and the verdict us “Because we can!” But the grand jury said: “No, you can’t.”

This is just such egregiously bad legal practice I’m surprised these people got law licenses (well, actually, I’m not. Licensure is not so much a way of controlling entry as it is controlling practice. In any case, it does neither very well.). I am surprised they weren’t fired, but then Trump has put Bondi and Pirro in charge, and fought to keep Halligan and Habba in office. The saving grace is that he already has a DOJ that can’t accomplish anything. For the country, however, that’s a very bad situation, indeed.

Which is where Sargent is wrong, however . The damage I mean is to the administration of justice, something government, through Art. II of the Constitution, is uniquely charged to do. There is no “next round” where matters get worse, except in the failure to administer justice. Trump can’t do any more harm to the DOJ, or through it. The authoritarian abuses are real enough, but those aren’t being ignored because the DOJ is now operating as the Three Stooges. It’s not “odd” to do what prosecutors tried to do here; it’s a violation of legal ethics and due process of law, at least. The only people “out on a limb” here is the Administration. And that limb is going to break. When the bough breaks, the cradle will fall.

And all the king’s horses, and all the king’s men, won’t be able to put Trump back together again.