When Rep. James Sensenbrenner (R-WI) asked Attorney General Eric Holder to explain the letters concerning Fast and Furious that were withdrawn by DOJ because they were “inaccurate,” as well other misstatements by Holder’s Justice Department in the investigation of the gun-walking disaster, Holder was quick to his own defense, arguing that no one lied.
“Tell me what’s the difference between lying and misleading Congress, in this context?” Sensenbrenner asked.
“Well, if you want to have this legal conversation, it all has to do with your state of mind and whether or not you had the requisite intent to come up with something that can be considered perjury or a lie,” Holder said.
In other words, the Attorney General is saying that for an actor to be guilty of a crime, he must have the state of mind (mens rea) to commit a crime. That common sense, and common law principle, was the gold standard—-until recently.
Legally, Holder appears to be correct under the definition of perjury in Title 18, which requires that an individual “willfully subscribes as true any material matter which he does not believe to be true.”
Meanwhile, there are scores, if not hundreds, of laws that require far less criminal intent and could result in hard time in federal prison. Just ask John J. Cassese, who, after settling a civil complaint brought by the SEC on insider trading charges, found himself the target of a criminal prosecution. He had already paid $321,387.84 for a deal in which he profited $150,000. Cassese bought stock on what he thought to be permissible information, but the facts were against him. For a civil complaint, there was no intent requirement, so Cassese quickly settled.
But criminal prosecutors in the Southern District of New York, with the Enron collapse happening in the background, pursued Cassese nonetheless. After two trials, one resulting in a conviction, a federal judge overturned the verdict, explaining to prosecutors the concept of criminal intent and why Cassese could not be convicted without it.
Like the judge, Holder jumps at the chance to explain the virtues of what every first year law student knows: that criminal law in America is based on a long tradition that a crime is not committed merely because of a bad act, but because an individual had the requisite intent to commit the crime. But Holder and his Justice Department often fail to apply this same principle in enforcing the law, and instead allow overcriminalization to run rampant.
If Congress pursued Holder in the same way that Holder’s DOJ handles prosecutions for the CEOs of drug companies under the Food, Drug, and Cosmetic Act, they he would have much to fear. As the Wall Street Journal reported, the “responsible corporate officer doctrine” has found new life in Holder’s DOJ. Executives of pharmaceutical companies have been found personally criminally liable because of the actions of their company and its employees even where there is no evidence that the executives even had knowledge that a crime was committed . The Supreme Court has upheld these convictions on the premise that drug companies, as well as food and other health companies, have a higher risk of causing death and injury if they engage in wrongdoing.
In the case of the DOJ and the Bureau of Alcohol, Tobacco, Firearms and Explosives, we already know that Fast and Furious has caused the death of Border Patrol agent Brian Terry, and guns from the operation continue to show up at crime scenes. In such a clearly dangerous practice, would Holder not want his DOJ attorneys to criminally pursue the CEO?
In addition to arguing about state of mind, Holder also argued that his people had taken reasonable steps to assure that the information was correct. He stated that “[t]he information that was provided in that February 4th letter was gleaned by the people who drafted the letter after they interacted with people who they thought were in the best position to have the information.”
Gibson Guitar has echoed Holder’s argument in explaining how the company relied on Indian officials who informed Gibson that the wood the company was exporting was perfectly legal under Indian law. As Holder would say it, Gibson “interacted with people who they thought were in the best position to have the information.” Yet now, Holder’s DOJ prosecutors are considering criminal charges after seizing $2 million worth of materials from the guitar manufacturer, claiming Gibson illegally took wood in violation of the Lacey Act. Rather than mercilessly pursue Gibson, Holder might want to ask his attorneys to listen to his own words and consider the fact that the company does not appear to have had the intent to violate the law and clearly had no knowledge that it was violating the law.
Setting aside whether one believes Holder’s defense or not to the Fast & Furious debacle, it is worth repeating that Congress routinely crafts new federal laws with criminal penalties, without inserting a mens rea requirement. Members should recall the importance of including proper intent requirements in every new criminal law that is written (as if we don’t already have enough at over 4,500 and counting). The Without Intent report published by The Heritage Foundation and the NACDL revealed that such is not the case.
Class was in session on Thursday on Capitol Hill, but time will only tell if Congress and the DOJ will learn from Professor Holder’s last lesson of the semester.