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Over the past week, the Obama Administration has been hit with scandal after scandal. The Internal Revenue Service (IRS) apologized for targeting conservative organizations, the State Department covered up its reaction to Benghazi, the Department of Justice (DOJ) secretly seized phone records of AP reporters, and the Department of Health and Human Services (HHS) asked health industry officials for contributions to implement the Affordable Care Act.
With these scandals arising, the question becomes, “Is President Obama responsible?” As of right now, there has been no link identified between the White House and these situations, nor is there evidence that Obama had any direct knowledge of the alleged wrongdoing. Does this mean that he is not responsible?
Nobody is remotely suggesting that, absent his direct involvement, the President should be prosecuted for the misdeeds of those who work in the executive branch. It is interesting to note, however — by way of analogy only — that under the DOJ’s standard of “responsibility,” if President Obama were the head of a corporation, he would be responsible and could be prosecuted.
The Responsible Corporate Officer Doctrine allows federal prosecutors to criminally prosecute business owners and officers for the criminal activity of their businesses, regardless of whether they had knowledge of the illegal activity. The only requirement for criminal liability is “some relationship between the executive’s supervisory responsibilities and the underlying misconduct.” Put another way, in order to obtain a conviction, the government need only prove (1) illegal conduct occurred, and (2) the corporate officer had authority to exercise control over the activity.
The DOJ has used the Responsible Corporate Officer Doctrine to make criminals out of many well-meaning business people. In United States v. Park, the Food and Drug Administration (FDA) prosecuted the president of a corporation under the theory that his subordinates committed violations of the Food, Drug, and Cosmetic Act that the president had the ability to prevent or correct. Park, the company president, had delegated responsibility to correct the violations to one of his employees, who, regrettably for Park, did not follow through on his responsibilities. Park was convicted for FDA violations that he did not commit, order committed, or conspire to commit.
Just to be clear, there is no evidence in the recent Obama Administration scandals that criminal behavior took place, but the executive branch should stick to one definition of “responsible.” The DOJ definition of “responsible” is especially troubling in the context of a criminal prosecution where a person’s individual liberty is at stake—not just news stories that make the President look bad.
As Paul J. Larkin Jr. has written:
The point is not that courts should be eager to hold senior federal officials vicariously liable for the criminal actions of subordinates.… Courts should refuse to adopt novel readings of criminal statutes which expand criminal liability to reach conduct that they find immoral or unethical and that they fear otherwise will go unpunished. Courts might be willing to hesitate before expanding the breadth of federal criminal laws, and to force Congress to define crimes with precision and specificity, if they looked at the issue from the perspective of the government officials’ own liability. After all, sauce for the goose should be sauce for the gander.
The Responsible Corporate Officer Doctrine turns our notion of fairness on its head. People should be liable for crimes they commit—not crimes committed by others without their knowledge. The Responsible Corporate Officer Doctrine and thousands of criminal statutes and regulations are turning ordinary citizens into criminals.
If the President is not responsible for the wrongdoings of executive branch employees because the federal government is “too vast” for him to know everything that goes on in the various agencies, business owners and officers should be afforded the same excuse in criminal prosecutions.
