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Too Many Federal Crimes; Cut ‘Em Down to Size!

Law Should Be Obeyed, BUT Reform is Appropriate!

Here is the pertinent text of the crime that General Michael Flynn was accused of (18 USC 1001):

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

Simple as that. Any false statement in any matter touching a federal matter is a felony. And as a matter of principle, that sounds like a good law and is a good law – in principle.

BUT the Flynn matter has illustrated how a good law in principle can be abused. I have three solutions to this dilemma:

One: Repeal this law altogether. I suppose if I were drafted to run for US senate by the Libertarians that would be my first position to take. Might be hard to get that passed. My alternative position would be the third idea below.

Two: Limit its use in the investigative realm to something like an overt obstruction of justice by a witness, not a mere denial of a crime by a target. There used to be a judge-made doctrine touching this state’s application to law enforcement called the “exculpatory no” doctrine. If the denial of the crime was not aggravated by a defendant, it was not an independent violation of 18 USC 1001. The Supreme Court decided in Brogan v. US, a 1998 case that neither the plain reading of the law nor the Fifth Amendment required this doctrine and that any reform of this matter to prevent federal agent overreaching is addressed to Congress.

Well, Congress did nothing and it is now 2020. I cannot assail my hero’s logic – Justice Scalia wrote this opinion for the Court – there are no words in the statute or the right against self-incrimination specifically authorizing the exculpatory no doctrine – and additions to written laws ought to be made by lawmakers not courts. But since nothing has been done, I propose my third idea:

Third: Amend the law to include the exculpatory no BUT also make it a misdemeanor AND a lesser included offense in any felony failure to report or fraud or false statement, verbal of otherwise, offense. Maybe make taxes an exception if I had to to get it passed.

But both the Flynn fiasco and the recent salutary decision of the SCOTUS in the Bridgegate case (The Court held unanimously that the federal wire fraud and federal fraud in a federal program did not apply to the “Bridgegate” situation absent proof the defendant personally profited from it – money or property – not political advantage.) Like I said in regard to Governor McDonnell’s case, there was no crookedness here. It was dumb and stupid but not crooked.

There are simply too many federal crimes. Just to illustrate how few federal crimes are necessary, in 1963, when President Kennedy was shot, Oswald was going to be tried in a state court for murder. Now I could agree we need a federal crime to protect any federal official.

But I contend that absent serious interstate (or international) criminal conspiracies or crimes that touch an enumerated power, e.g. bankruptcy fraud, counterfeiting or copyright infringement for example, we do not need many federal crimes. Arson and bank robbery for example can be prosecuted in state courts. We also need for all federal crimes (serious state crimes, too) to require some sort of mental state: Knowingly, willfully, intentionally – not just the misbranding of food and drugs or filling in a wetland to be the crime.

Now that everybody is angry about Flynn – pro and con – where is Senator Lindsey Graham when you need him? We need to seriously reform federal crimes. That does not even begin to discuss mandatory sentences – they should be scaled back or abolished altogether. If there is an issue with sentencing, those states like Virginia that reappoint judges at regular intervals should exercise true accountability and see if the judges are sentencing properly. And the US senators should ask tough questions of federal district court candidates about sentencing.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

3 Responses to “Too Many Federal Crimes; Cut ‘Em Down to Size!”

  1. It’s probably tacky to respond to an article by posting a link to an article the poster wrote [forgive me] – but this issue is SO important. This paper (written 11 years ago) explains the criminal jurisdiction of the US Government – it is VERY LIMITED:

  2. Congress has the power, under the Necessary and Proper Clause, to criminalize things like murder and extortion and kidnapping and intimidation and voter suppression at the Federal level insofar as it’s Necessary and Proper to enforce the post Civil War Amendments. When States refuse to effectively enforce their own laws against these crimes when committed against former slaves and other disadvantaged populations, the Federal Government has a role and must step in to protect them. If States like Mississippi had enforced their own laws agains this crimes, this would not be necessary.

    The US Constitution was designed in part to protect slavery. The Electoral College and Second Amendment are good examples. Since then we’ve moved past that in a lot of ways. Publius Huldah would have us revert to a pre-Civil War Constitution that allows States to discriminate against minorities. This is a bad idea.

  3. Sandy Sanders

    Let me say that my respect for both Stan Scott and Publius Huldah are great; I could have added the Civil War amendments as a source of power to Congress. (That is a main reason why the ERA is so dangerous in that it gives Congress the power to enforce every potential distinction on the basis of gender – divorce, custody, alimony, marriage etc. will be under the power of Congress. We might as well not have a Constitution if we pass the ERA.) But there still is policy determinations and the main one is: Are the police power of the states able to handle the crime issue or is it necessary for the feds to legislate. It is seldom necessary for the feds to legislate arson, bank robbery, cruelty to animals, etc. Since I disagree with the expansive view of the commerce clause that tiny effects on commerce writ large over the nation gives Congress the power to act and that is the “need” for many federal crimes, we ought to get rid of them.


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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