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Commentary: Think the Mueller investigation is bad? Guess what: It could happen to you

Special Counsel Robert Mueller speaks at FBI headquarters in 2008. (Photo by Alex Wong/Getty Images)

One of the nice things about President Donald Trump is that you never have to wonder what’s on his mind. If you ever want to know what he is thinking, especially about things that anger or frustrate him, all you have to do is open up Twitter and there’s a good chance you’ll see it, even if you don’t follow the president directly.

It’s clear that what’s on the president’s mind lately is his frustration with the seemingly endless investigation into his campaign’s alleged dealings with the Russian government, and his inability (for either legal or political reasons) to make an investigation that he views as a “witch hunt” go away.

President Trump’s supporters have picked up the refrain, expressing frustration at the seemingly endless investigation into activity that is at least arguably not even criminal by definition — echoing the refrain of Ken Starr’s critics who claimed that he was abusing his authority by digging into behavior that was salacious (“just about sex”) but not illegal.

Partisans on either side can and will quibble with these defenses (Clinton, after all, almost certainly did obstruct justice and perjure himself, but that isn’t what the Starr investigation wasn’t supposed to be about when he was appointed). However, all this bickering misses a much more important point.

At the end of the day, President Trump will be fine; he has access to an infinite cadre of talented lawyers (although why he continues to employ the doddering Rudy Giuliani instead is anyone’s guess), and is protected from the specter of impeachment by the sheer weight of numbers. The worst-case scenario for him is pretty much what happened to Clinton in 1998, and voters responded to that fiasco by punishing the Republicans who engaged in it.

Everyday ordinary Americans, however, are not so lucky. And for many of those everyday Americans — who are not rich and powerful and more or less protected from the possibility of actually spending decades in a jail cell — the prospect of dealing with a years-long investigation sparked by an ambitious and unscrupulous prosecutor who is hell-bent on prosecuting them for something is all too real. And for those who find themselves in the crosshairs, the consequences can be financially ruinous. Too many Americans find themselves facing the prospect of bankrupting their family on a hopeless fight, or accepting a plea deal just to make the problem go away, even though they have done nothing an ordinary person would identify as criminal.

The reason is simple: America has a drastic over criminalization problem. Too many activities that ordinary people would never give a second thought to at least arguably fall under the ambit of at least one of the thousands of criminal statues (or hundreds of thousands of potentially criminal regulations) in this country.

About a decade ago, I purchased my first house. The primary selling feature of the house was a beautiful little stream that meandered through the back yard just past the back fence. The stream was home to all sorts of wildlife that my then-toddler son and I would wander out to inspect.

One month, some box turtles escaped the stream bed, shimmied under my fence, and took up residence in my back yard. They dug a little pit in a muddy, grassy area, and made themselves at home. Not being the sort of person who cares overmuch about having a pristine lawn anyway, I left the turtles to their home and let my son periodically go check on their progress.

As you might have guessed, one day a little brood of turtle hatchlings appeared. Shortly thereafter, the parents apparently having tired of my son’s attention, the little turtle family moved on, presumably back into the stream and out of our lives. However, they left one little straggler behind, for reasons that were unknown to us.

After a couple of days, when it became clear that the family wasn’t returning, I allowed my son to bring the turtle into the house to attempt to keep it alive, and thus unwittingly committed a crime against both the state of Tennessee (which forbade attempting to keep a box turtle as a pet even if it wandered onto your property) and the federal government (which, at least at the time, required you to get a federal permit first).

My son named the turtle “Petey” and attempted to minister to it by feeding it frozen peas and other vegetables, but inevitably our little illegal turtle eventually died. RIP Petey, who would eventually become an object lesson that I would tell people about once I became a lawyer and the statute of limitations for my heinous crime had passed.

Chances are, you and your loved ones have had many of your very own Petey the turtle incidents without even being aware of it. There are more than 4,000 criminal statutes in America, and hundreds of thousands of regulations that carry possible criminal penalties for violating them.

In his seminal book, "Three Felonies a Day," attorney Harvey Silverglate exposed what should be obvious just from the sheer weight of those numbers: all sorts of acts that the ordinary person doesn’t think of as criminal are, in fact, potential criminal offenses, and you likely commit several of these acts a day.

The corollary of this truth is obvious: if a prosecutor wants to prosecute you for something, they can. All they have to do is get the police to watch you for long enough, and sooner or later even the most conscientious citizen can find themselves in the crosshairs of the criminal justice abbatoir.

For those who react with indignation to unjust persecution and are inclined to fight, they soon find that the criminal justice machine is simply not worth fighting, when the best possible result involves trying to convince a group of 12 strangers that the prosecutors or police aren’t being totally honest.

Take, for example, the story of a 22-year-old named Jaide, who asked that her last name not be revealed in this story. She was recently enjoying a holiday from her studies at college by drinking with some friends at her parents’ suburban Dallas home. When her friends got loud and belligerent, she asked them to leave, and when they refused, she called the cops.

When a patrol cruiser pulled up in front of her house, her friends finally jumped in a car and left, so Jaide went out on her front porch to meet the officer and explain the situation. She told TheBlaze that the officer, clearly annoyed at having been called out to resolve what he considered to be a trivial situation, announced that he was going to arrest her for public intoxication. She responded with the natural question, “How can I be publicly intoxicated in the middle of the night on my own front porch?”

Such questions were academic nonsense to the officer, who arrested her and booked her for violation of Texas Penal Code section 49.02, which as it happens does not define what constitutes “in a public place.”

Jaide was inclined to fight, certain in her belief that “in a public place” could not be so broad as to include her own private property. However, being a college student with limited income, she could not afford a lawyer, and the state would not provide one for a Class C misdemeanor.

When she showed up to her preliminary hearing, the prosecutor told her that she could accept a fine and a deferred sentence, or she could fight and risk a larger fine and a criminal conviction. Without her own lawyer, she was angry and confused about what to do.

Another defendant’s lawyer happened to be present and overheard the conversation. According to Jaide, the attorney told her the facts of life that have confronted numerous criminal defendants from time immemorial: this charge is BS, but fighting it will cost you more than the maximum possible fine and might end up costing you a worse penalty in the end.

Like so many before her, she took the plea deal because there was simply no meaningful alternative.

America has been slow to realize just how ubiquitous the criminal code has become in their lives, even though a bipartisan consensus of criminal justice think tanks have been sounding the alarm for years.

One anonymous person even started the @CrimeADay Twitter feed, which has been chronicling some of the insane things that are actually criminal in the United States. Some of the greatest hits, just from the past few days:

And the list goes on and on. And the sheer absurdity and volume of the list doesn’t even accurately convey the full extent of the problem, since prosecutors can often shoehorn behavior that doesn’t seem to fit into a statutory definition (like calling your own front porch “a public place” in order to nail you for “public intoxication”) and force YOU to spend tens of thousands of dollars in legal fees to fight them.

But if you think you have it bad, as an ordinary American individual, at least you aren’t a corporation. Most circuit precedents allow prosecutors to impute knowledge of the lowliest employee to the entire corporation. Worse, many circuits allow the government to impute knowledge held by different employees to the corporation as a whole, leading to some truly absurd prosecutions.

For example, federal law makes it a crime for a bank not to report you to the authorities if you withdraw more than $10,000 in cash from your bank account, under the somewhat bizarre theory that the possession of United States dollars is per se suspicious. It is also a crime to knowingly conceal from the government when a person is trying to avoid this requirement by making several different withdrawals in a short period that are under $10,000 apiece.

Because of the doctrines of imputed knowledge and collective knowledge, if a person withdraws $4,000 from one branch of your bank, then drives across town and withdraws $7,000 from a completely different teller, the knowledge of both of those tellers can be a) combined and b) held against the company, such that banks can and have been successfully prosecuted on exactly these facts.

Far more absurd results are potentially possible. 18 USC Section 1001 makes it a crime to “knowingly” make a false statement to investigators, including the FBI. Whatever the wisdom of an ordinary prosecution under this hideously overbroad statute against individuals like Mike Flynn, the way it is applied against corporations is so absurd it can often only be explained by corrupt motives.

For example, an FBI agent could walk into a Shell gasoline station tomorrow and ask the cashier if Shell has had any oil spills lately. If the cashier answers “no” according to his honest belief that there haven’t been any, but some other employee in a completely different part of the country is, in fact, aware that there has been an oil spill, then Shell can be prosecuted for “false statements” under 18 U.S.C. 1001 because the knowledge of all employees can be combined and held against the entire company as a whole.

And if that company wants to risk fighting the issue out at trial, they risk a felony conviction, which carries the penalty of automatic debarment from government contracts — a penalty that would be the death knell for many companies. So even when the legal theory behind a prosecution is questionable, corporations are often forced to accept extortionate plea deals (including restitution far in excess of maximum statutory penalties) as a condition of doing business.

The bottom line, if you are a corporation, is that you better hope you don’t become politically unpopular, or that your local prosecutor doesn’t need to burnish his “tough on crime” credentials, because if you do, you’re going to need some cash reserves to make the problem go away.

Many Americans tend to live in an insulated world where they believe that an unjust prosecution will never happen to them, and that most people who end up in the defendant’s chair did something to deserve being there. In fact, the pervasiveness of this belief is one of the main reasons people who legitimately believe strongly in their own innocence still accept plea deals; after all, who wants to put years of their life in the hands of 12 strangers who have been programmed all their life to believe police and prosecutors?

I certainly don’t mean to imply that all or even most prosecutors or police are unscrupulous, or that the majority of criminal prosecutions aren’t perfectly justified on their terms. What I am saying is merely this: prosecutors and cops certainly could railroad you, if they wanted to. If you ran afoul of the wrong people in positions of government authority and they decided to watch you closely, you could find yourself in jail, even if you were exceedingly careful not to do anything “wrong.”

I promise, it could happen to any of us. And that’s a problem. And if you don’t happen to be media savvy, rich, and well-connected, your story would get swept under the rug as surely as the sun will rise in the East tomorrow.

And that’s a problem. A country in which the difference between freedom and jail depends almost entirely on the discretion of police and prosecutors isn’t a country that lives under the rule of law. It is, instead, a country that lives under the rule of man.

A major, major revision of the criminal code is needed on both the state and federal level to combat this problem. Many, many things that are currently characterized as crimes and punishable with jail time should, at worst, be punishable as mere civil offenses with potential fines. Of course, as a libertarian, I would additionally state that many of these regulations shouldn’t be punishable at all, but you don’t have to be as militantly anti-nanny-state as I am to believe that bucking the nanny state should result in fines rather than jail time.

Changing these offenses from criminal violations to civil ones would serve another vital purpose. By removing them from the purview of general prosecutors and placing them under the aegis of specialized regulators, it at least theoretically ensures that where the government acts, it does so out of serving an actual purpose rather than prosecutorial vindictiveness.

In other words, if there’s a legitimate problem with people improperly transporting bee semen, that should be policed exclusively by the federal agency that actually studies the bee semen issue (whoever those unfortunate souls are) and thus is attempting to actually address a problem and can understand who needs to be prosecuted and who should be winked at.

By contrast, leaving all these statutes on the criminal books means that individuals who have the power of extracting jail time have an infinite array of excuses to lock you up, if they want to, and zero incentive to use discretion wisely to solve the actual problem these criminal statutes were aimed at.

Back to the president’s beef: He’s at least arguably got a point. The most plausible theory of “collusion” that has been uncovered so far goes something like this: some of his campaign officials (including his son, Donald Trump Jr.) took a meeting with someone who turned out to be connected with the Kremlin, who told them that they had opposition research information about Hillary Clinton.

This much, at least, has been admitted by no less authoritative of a source than Trump himself, although Trump Jr. certainly made himself look guilty by initially claiming (falsely) that the meeting was about adoptions in Russian and the obscure Magnitsky Act. What’s less clear is whether Trump Jr. knew that the information in question came from Russian spies, or was obtained illegally through espionage, or what he told the Russian source at the meeting to do with the information.

But even under the worst case scenario, in which the source told Trump Jr. that they had access to hacked emails, and Trump Jr. suggested unloading them on Wikileaks, it’s not exactly clear why that is or should be a crime. Obviously, it’s distasteful and you would much rather that Trump Jr. et al had gone to the FBI with the information, but I’m not aware of any legal obligation on the campaign’s part to do anything of the sort, nor has anyone cited a criminal statute that would suggest such an obligation.

Obviously, it would be different if Trump’s campaign had asked for the hacking, or directed the hacking, which would make them co-conspirators in the original offense. But that has not, so far as I know, been alleged or uncovered anywhere.

I don’t mean to take sides on the Mueller investigation, however. It’s entirely possible that Mueller either has or will uncover evidence of clearly illegal activity on the part of the Trump campaign. If that happens, then the people responsible should pay the price and I’m sure Trump will pay some sort of political price.

The important thing about the Mueller investigation isn’t really whether Trump is guilty or not guilty of having committed a crime. In this hyper-polarized environment, he isn’t going to get removed from office pretty much no matter what Mueller uncovers anyway.

The important thing is that the president of the United States, with all his power, cannot make a criminal investigation go away, even though he seems to genuinely believe that the activity he is charged with isn’t criminal even if the charges are true.

And if the president can’t do it, what chance do the rest of us have?

One last thing…
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