//  9/5/17  //  In-Depth Analysis

Cross-posted from Shugerblog

On Friday, news broke that Special Counsel Robert Mueller had obtained a draft letter written by President Trump and advisor Stephen Miller explaining Trump’s decision to fire FBI Director Jim Comey. They wrote the letter over the weekend of May 5-7, and then on May 8th, Trump distributed and read the letter to senior officials, including White House Counsel Don McGahn and Vice President Mike Pence. Then the letter was edited, and Trump fired Comey the next day.  On Friday, I suggested on Lawrence O’Donnell’s “The Last Word” on MSNBC that the most significant development was Pence’s potential criminal liability for his role in obstruction of justice (and I emphasize “potential,” because all we have at this stage are allegations in media reports and a lot more questions about the contents of the letter and Pence’s role in revising or editing it).

I have explained in other posts why Trump’s firing of Comey constitutes obstruction of justice under 18 U.S.C. 1512(c)(2), and arguably Sections 1503 and 1505. “(c)Whoever corruptly- (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” 18 USC 1515 defines “official proceeding,” and includes Congress and authorized government agencies. The 2d and 5th Circuits have held that an FBI investigation is an official proceeding (but a 9th Circuit case raises questions about that interpretation). But keep in mind that 1) Congress had already started its investigation (including having Comey testify about the Russia probe), and 2) prosecutors had already obtained grand jury subpoenas in the Flynn caseThese official proceedings had already begun, particularly in the Flynn investigation, which had been the focus of Trump’s questions to Comey in January through April. Firing Comey would impede those official proceedings, and Trump himself more or less confessed to trying to influence and impede the Russia investigation by firing Comey: first on national TV to Lester Holt, then in the Oval Office to Kislyak and Lavrov on an official transcript.

In this new post, I explain Vice President Pence’s potential criminal jeopardy for conspiring to obstruct justice, aiding the obstruction of justice, and “misprision of a felony” in concealing the obstruction of justice.

First, I offer an extended quotation from The New York Times describing the events:

The letter, drafted in May, was met with opposition from Donald F. McGahn II, the White House counsel, who believed that its angry, meandering tone was problematic, according to interviews with a dozen administration officials and others briefed on the matter. Among Mr. McGahn’s concerns were references to private conversations the president had with Mr. Comey, including times when the F.B.I. director told Mr. Trump he was not under investigation in the F.B.I.’s continuing Russia inquiry.

Mr. McGahn successfully blocked the president from sending the letter — which Mr. Trump had composed with Stephen Miller, one of the president’s top political advisers — to Mr. Comey. But a copy was given to the deputy attorney general, Rod J. Rosenstein, who then drafted his own letter. Mr. Rosenstein’s letter was ultimately used as the Trump administration’s public rationale for Mr. Comey’s firing, which was that Mr. Comey had mishandled the investigation into Hillary Clinton’s private email server….

The New York Times has not seen a copy of Mr. Trump’s letter — which was drafted at the urging of Mr. Trump during a pivotal weekend in May at the president’s private golf club in Bedminster, N. J. — and it is unclear how much of the letter’s rationale focuses on the Russia investigation…

Mr. Trump ordered Mr. Miller to draft a letter, and dictated his unfettered thoughts. Several people who saw Mr. Miller’s multi-page draft described it as a “screed.”

Mr. Trump was back in Washington on Monday, May 8, when copies of the letter were handed out in the Oval Office to senior officials, including Mr. McGahn and Vice President Mike Pence. Mr. Trump announced that he had decided to fire Mr. Comey, and read aloud from Mr. Miller’s memo.

Some present at the meeting, including Mr. McGahn, were alarmed that the president had decided to fire the F.B.I. director after consulting only Ms. Trump, Mr. Kushner and Mr. Miller. Mr. McGahn began an effort to stop the letter or at least pare it back…

Mr. Rosenstein’s memo arrived at the White House the next day. The lengthy diatribe Mr. Miller had written had been replaced by a simpler rationale — that Mr. Comey should be dismissed because of his handling of the Clinton email investigation. Unlike Mr. Trump’s letter, it made no mention of the times Mr. Comey had told the president he was not under investigation.

Mr. Rosenstein’s memo became the foundation for the terse termination letter that Mr. Trump had an aide attempt to deliver late on the afternoon of May 9 to F.B.I. headquarters in Washington. The White House made one significant revision, adding a point that was personally important to Mr. Trump: “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau,” the letter said.

With those reports in mind, I address Pence’s potential criminal liability for obstruction of justice in terms of conspiracy, aiding and abetting, and misprision of a felony (18 U.S.C. 4).

1.  Conspiracy to obstruct justice and aiding obstruction of justice

If the New York Times account is correct, then Pence read the first draft of the letter, and the letter indeed had conveyed that Trump was focused on the Russia investigation. Pence is a lawyer, so he would be held to a higher standard for understanding the basics of obstruction of justice. And Don McGahn apparently raised his own legal concerns, so there is a strong basis for establishing Pence’s awareness that Trump’s letter may have established Trump’s “corrupt intent” to impede the Russia investigation. If Pence helped to edit and revise the letter, and supported the firing of Comey despite knowing Trump’s intent to obstruct, then he conspired to obstruct justice himself and aided in the obstruction. Conspiracy is covered by 18 USC 371, and aiding and abetting is covered by 18 USC 2. A helpful and concise article on federal conspiracy law, with a discussion of its relation to aiding and abetting is here.

The 9th Circuit has helpfully explained the basics of conspiracy and its relationship to aiding and abetting:

The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate[ ] himself with the venture … participate[ ] in it as something he wish[es] to bring about, and [sought by] his action to make it succeed. By contrast, a classic criminal conspiracy as charged in 18 U.S.C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy. Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F.3d 994, 1006-1007 (9th Cir. 2008)(emphasis in the original)

2.  Misprision of a felony

“Misprision of a felony” is found in 18 U.S.C. 4, right after the “aiding and abetting” and “accessory after the fact” statutes:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Misprision sounds overly broad and seems to create a risk of criminalizing too many omissions. The statutes originated from England in an era without police forces or even public prosecutors, so law and order depended upon the public reporting crimes. The Supreme Court explained in 1980:

Concealment of crime has been condemned throughout our history. . . . Although the term “misprision of felony” now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination . . . the criminal defendant no less than any other citizen is obliged to assist the authorities. See Roberts v. U.S., 445 U.S. 552, 557-58 (1980)

But one should also read Justice Marshall’s dissent concerns about the breadth of misprision and the danger of its aggressive use.  In our modern era, as this need for the public’s participation has lessened and as our concerns for civil liberties have grown, courts have rightly limited the scope of misprision in two important ways:

1) to require active steps, either concrete or verbal, to conceal; and

2) to hold public officials to a higher standard than private individuals.

Misprision convictions are appropriately rare. Prosecutors often rely on conspiracy, aiding or abetting, and/or being an accessory after the fact. But as part of a compromise in a plea bargain, prosecutors will sometimes drop those charges in exchange for a defendant to plead guilty to misprision. Nevertheless, misprision remains in use, and its elements may apply to Pence’s conduct, though we need to know more about his actions and the contents of the first letter.

For this discussion, I chiefly rely on Christopher Mark Cureton’s recent article, “The Past, Present, and Future of 18 U.S.C. Section 4: An Exploration of the Federal Misprision Statute,” 55 Ala. L. Rev. 183 (2003).

The elements of American misprision of felony are that: “(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.” United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988).

Cureton explains that active concealment can be physical or verbal. Courts “almost uniformly” treat physical acts of concealment as sufficient for misprision. Verbal concealment is harder to prove. Mere silence is insufficient to support a conviction for misprision. At the other extreme, knowingly providing the police with completely false information will constitute concealment. In United States v. Hodges,  the underlying offense was a kidnapping in which the defendant misrepresented to FBI agents that he had never seen the kidnapping victim. The court held that lying to authorities about a crime is an act sufficient to constitute concealment. In contrast, making truthful but incomplete statements may not amount to concealment. The Ninth Circuit’s rationale for this is that a partial, truthful disclosure does “not result in any greater concealment of the crime than would” result if the defendant said nothing at all. (citing United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977)United States v. Pittman, 527 F.2d 444, 444-45 (4th Cir. 1975)United States v. Ciambrone, 750 F.2d 1416, 1418 (9th Cir. 1984).

In 1996, prosecutors charged a corporation with misprision of felony for the first time. Daiwa Bank, Ltd. executives had discovered that one of their traders “had lost over $1.1 billion through unauthorized trading in United States government securities” and that the trader then sold other customers’ securities to cover the losses. Daiwa avoided reporting the crime, and instead:

committed numerous crimes in its effort to hide these losses. In particular, DAIWA made extensive false entries in its books and records, prepared and sent false account statements, filed a false report with the Federal Reserve, explored plans to hide the loss permanently by moving it off-shore, secretly replaced the missing $377 million of customer securities, and engaged in a fictitious transfer of $600 million worth of nonexistent securities. (Press Release, U.S. Attorney, Southern District of New York, Announcement of Daiwa Guilty Plea and Sentence (Feb. 28, 1996) (WL 1248 PLI/Corp 197, 245)).

Daiwa pled guilty to misprision of a felony, as well as fifteen other federal felonies, and paid a $340 million dollar fine, the largest ever paid in a criminal case at that time. (Curenton at p. 190).

In this case, if Pence heard the letter, (and perhaps heard McGahn’s concerns), and provided any feedback to editing and revision to conceal the obstructive purpose, and/or provided support for the decision to fire Comey, he provided an affirmative act as part of crime. (These acts could also be part of conspiracy and aiding obstruction).

Moreover, we already know that, on May 10, a day after Trump fired Comey, Pence publicly denied that the Russia investigation factored into the decision (full video here):

Question: “But did the President fire Comey to impede the Russia investigation?”

Pence first answered by saying the Trump “is not under investigation.”

A reporter followed up, “But intelligence officials have said there is an investigation into potential ties between campaign officials and Russia…

Pence: “That was not what this is about.”

A different reporter asked, “What about the president’s dissatisfaction with the Russia probe. Did that play into this, sir?”

“Let me be very clear that the President’s decision to accept the recommendation of the deputy attorney general and the attorney general to remove Director Comey as the head of the FBI was based solely and exclusively on his commitment to the best interest of the American people and to ensuring that the FBI has the trust and confidence of the people of this nation.”

If Pence had read Trump’s letter, and if the letter’s “screed” in fact focused on the Russia investigation, Pence’s answers would be a combination of lies, misrepresentation, and concealment. If the allegations are true, then the combination of Pence’s participation in the letter revision and his lies afterward would constitute the affirmative acts necessary for misprision.

3.  Public officials are held to a higher duty

Historically, courts have held public officials to a higher duty for misprision. Blackstone himself seemed to indicate that English statutes placed higher duties on public officials, relative to private individuals, to report crimes. Blackstone, Commentaries, Vol II, P. 85 See Carl Wilson Mullis III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1113-14 (1974); P.R. Glazebrook, Misprision of Felony: Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 194 (1964). See also Curenton at 191-92.

In fact, in my own research, I have found that federal officials already have a duty under federal regulation to report crimes they have observed. The Code of Federal Regulations includes a section on “Basic Obligations of Public Service”: with a specific duty to disclose not only crimes, but also abuse and corruption: “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

Curenton also suggests that, when the defendant is a public official, misprision should not require even an affirmative act of concealment (Curenton at 191-92):

A better alternative would be to remove the requirement of an affirmative act of concealment when dealing with people in positions of trust, such as government officials. In these situations, requiring an affirmative act makes little sense because such officers are usually already under an affirmative duty to report illegal activities.This change would be consistent with the common law tradition of misprision because the term misprision itself was thought to have been “especially appropriate to the misconduct of public officers.” Further, such an alteration may be advisable because “(p)ublic officers voluntarily seek this special position of trust, and expecting them to report crimes does not place an onerous burden upon them.” Thus, it may be appropriate to not only maintain the current misprision of felony statute that requires affirmative acts of concealment as well as a failure to report, but also to develop a second version that punishes a public figure’s mere failure to report. This same approach could also be used in the corporate realm, where disclosure is an expected and (increasingly) recommended business practice. Curenton at 191-92 (citing Carl Wilson Mullis III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1113-14 (1974); P.R. Glazebrook, Misprision of Felony: Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 194 (1964).

Even if one does not go as far as Cureton’s proposal, the established law and precedents  on misprision would put Pence in legal jeopardy for his combination of affirmative acts of concealment before and after the firing, plus his higher duties of reporting crimes as a public official.

The bottom line:

If the reports are correct that Pence heard Trump read his draft letter, a “screed” emphasizing Comey’s handling of the Russia probe, that he may have participated in feedback or revision to conceal that intent, then Pence is in legal jeopardy for obstruction of justice, either as conspiracy, aiding and abetting, or misprision of a felony.

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