The Volokh Conspiracy

I blogged a lot about this topic a few years ago when the Boucher case was pending; although an appeal was filed in that case in the First Circuit, the appeal was dropped so the appellate court never decided it. In any event, several readers point me to a new decision on the topic, United States v. Fricosu, out of the District of Colorado.

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

UPDATE: A reader asks what happens if a person refuses to comply with the order or claims to have forgotten the password. Here’s the Second Circuit’s summary of the law in In re Weiss, 703 F.2d 653 (2d. Cir. 1983):

Testimonial obduracy by a witness who has been ordered by the court to answer questions may take any of a number of forms. The witness may refuse categorically to answer. Or he may respond in a way that avoids providing information, as, for example, by denying memory of the events under inquiry, denying acquaintance with targets of the inquiry, or denying knowledge of facts sought to be elicited. Or he may purport to state informative facts in response to the questions while in fact testifying falsely.

Any of these three forms of obduracy may be met with the imposition of one or more judicial or governmental sanctions. For example, when the witness has refused to answer questions, he may be adjudged in civil contempt and ordered to answer, e.g., Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; In re Grand Jury Investigation of Giancana, 352 F.2d 921 (7th Cir.), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); or he may be adjudged in criminal contempt and punished for his past failure to answer, e.g., Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). In some cases both coercive and punitive sanctions have been imposed. See, e.g., Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. Petito, 671 F.2d 68 (2d Cir.1982); In re Irving, supra.

If the witness has responded falsely to the questions propounded, he may be subject to prosecution for a criminal offense in violation of, e.g., 18 U.S.C. § 1621 (perjury), or 18 U.S.C. § 1623 (false declarations before grand jury or court). If the witness’s false testimony has obstructed the court in 663*663 the performance of its duty, the witness may be met with sanctions for civil contempt, see Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), or criminal contempt, see In re Michael, 326 U.S. 224, 227-29, 66 S.Ct. 78, 79-80, 90 L.Ed. 30 (1945).

The middle category of testimonial obduracy, i.e., the witness’s equivocal responses or disclaimers of knowledge or memory, has also been dealt with as contemptuous conduct, warranting sanctions that were coercive, punitive, or both. It has long been the practice of courts viewing such testimony as false and intentionally evasive, and as a sham or subterfuge that purposely avoids giving responsive answers, to ignore the form of the response and treat the witness as having refused to answer. See, e.g., In re Schulman, 167 F. 237 (S.D.N.Y.1909), aff’d, 177 F. 191 (2d Cir.1910); United States v. Appel, 211 F. 495 (S.D.N.Y.1913); United States v. McGovern, 60 F.2d 880, 889 (2d Cir.), cert. denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561 (1932); Schleier v. United States, 72 F.2d 414 (2d Cir.), cert. denied, 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 697 (1934); In re Eskay, 122 F.2d 819 (3d Cir.1941); Howard v. United States, 182 F.2d 908 (8th Cir.), vacated and remanded as moot, 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950); Richardson v. United States, 273 F.2d 144 (8th Cir.1959); Martin-Trigona v. Gouletas, 634 F.2d 354, 357-59 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980); In re Battaglia, supra, 653 F.2d at 422; In re Bongiorno, supra.

In In re Schulman, for example, the district court found that a bankrupt’s repeated responses of “I don’t remember” and “What do you mean?” to questions concerning the disposition of his assets in the six months preceding his declaration of bankruptcy were disingenuous and evasive. The court thus construed the responses as refusals to answer and imposed a combination of civil and criminal contempt sanctions by ordering the witness imprisoned for six months, with the proviso that if the witness chose, after five days, to provide nonevasive answers, he would be released from prison. This Court affirmed, stating as follows:

The testimony as it appears in the record evinces a deliberate purpose to conceal the truth and prevent the trustee from becoming possessed of facts which would lead to a recovery of the missing property. The witness was being asked regarding transactions directly within his knowledge and facts which he must have known. When, therefore, he answered repeatedly “I don’t remember,” it is obvious that he was deliberately withholding information to which the trustee was entitled. In effect his attitude was one of defiance. He did not affirmatively tell the referee that he refused to disclose the facts which would enable the trustee to follow the property, although these facts were well known to him, but his conduct produced the same result as if he had stated his purpose openly.

177 F. at 193.

The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney’s Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North’s and John Poindexter’s decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:

[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.

[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.

[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David Durenberger (R., Minn.) told reporters. “If they are such heroes, why are they deserting their country when they are finally being put to the true test?”

[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North’s voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.

I express no opinion on whether such views are right or wrong, either with regard to North and Poindexter or with regard to Patrick J. Cunningham, the federal prosecutor who is taking the Fifth in the Fast and Furious investigation.

Reader John Lunde points to the story about the criminal division chief of the Arizona U.S. Attorney’s Office taking the Fifth Amendment in the Congressional investigation of Operation Fast and Furious, and asks: What if the witness is given immunity from prosecution — which normally blocks the invocation of the privilege against self-incrimination — but “still refuses to testify for fear of Mexican prosecution? Would that be a valid defense?”

The answer is that fear of foreign prosecution does not suffice to allow the assertion of a privilege against self-incrimnination, see United State v. Balsys (1998) (7-2) (Ginsburg & Breyer, JJ., dissenting), at least absent some deliberate attempt by the U.S. and Mexico to use this as a plan for gathering information for a Mexican prosecution. “Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause,” unless (for instance) “the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and … the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries” (in which case “that prosecution was not fairly characterized as distinctly ‘foreign’”).

Here’s an entertaining lecture by law professor (and former defense attorney) James Duane on why he will never talk to the police — or perhaps more accurately, why defense attorneys hope that their clients have not done so.

Thanks to commenter Anton Iskabibble for the link.

Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”

If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.

Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.

Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)

“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial Patriot Act provisions—to name a few—have turned honest citizens into federal defendants and even convicted felons.

What about “due process of law” guarantees provided under the Fifth Amendment and its ancillary “void for vagueness” doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests “near” a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts.

But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence.

This dangerous trend is exacerbated by the “win at all costs” mentality of the Justice Department. Colleagues are turned into stool pigeons as prosecutors offer deals for testimony that often bears little resemblance to the truth. (As my colleague Alan Dershowitz colorfully but all-too-accurately puts it, “prosecutors can pressure witnesses not only to sing, but also to compose.”)

Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.

That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics. When these cases end in plea agreements, scant scrutiny is applied to the sometimes questionable prosecutorial tactics—tactics, incidentally, that are rarely understood, much less questioned, by a largely pliant news media that feeds on sensational prosecution claims.

It’s important to keep in mind, too, that this problem is not the creation of any one political party. It’s a truly bipartisan beast, expanding rapidly since the mid-1980s. That’s when I, a criminal defense and civil liberties trial lawyer since 1967, noticed that more and more of my clients in federal criminal cases were being prosecuted for actions that neither I nor they instinctively viewed as criminal. In a few instances, their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution.

To my surprise (and chagrin), this trend has only increased with each successive changing of the Washington political guard. From Reagan to Obama, Congress has continued to pass indecipherable legislation, and federal prosecutors have continued to twist statutes in order to criminalize a broad array of conduct—including, quite often, conduct that is assuredly not in violation of state law but which suddenly becomes federal fraud.

The bipartisan nature of this problem is at once disheartening and encouraging. Disheartening, in a sense, because it cannot be remedied by voting one party out of power. It seems to be rooted in the culture at Main Justice, a culture that persists from one attorney general to the next.

In another sense, though, the nonpartisan nature holds promise. Recognition of this problem has brought together seemingly disparate groups to collectively seek change.  Adam Liptak, Supreme Court reporter for The New York Times, picked up on this in his November 23 column, “Right and Left Join Forces on Criminal Justice.”

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

Liptak noted, later in the column, that an official from the conservative Heritage Foundation offered him a copy of Three Felonies a Day. (In that column, Liptak referred to me as a “left-wing civil liberties lawyer,” and that was somewhat accurate, although I see myself as a liberal with strong libertarian leanings. My co-founding The Foundation for Individual Rights in Education (FIRE) demonstrates, for example, my near-absolutist support for free speech regardless of politics or point-of-view.)

The “honest services” hearings and the emerging consensus on reforming these criminal justice issues were also highlighted by Tony Mauro of the National Law Journal. In his December 7th column, Mauro pointed out that former Attorney General Edwin Meese III—whom I criticized vehemently when he headed the Reagan Justice Department—welcomed me at a recent speaking event. We now see eye-to-eye on “overcriminalization” of the law, which covers both the expanded reach of federal criminal law and the vagueness of the statutes.

Over the coming week, I will explore the extent of the threat to liberty represented by vague federal laws and the reasons behind this nonpartisan unification against them.

Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.

Finally, Part III (pp. 27-33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.

Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.

United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II.