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Is Republican Obstructionism Criminal?

Law Library With ScalesWe have just survived another wrenching Republican shakedown.  My last column addressed the illegality of this GOP tactic in broad terms. That column, in turn, caused several people to inquire whether or not this behavior was also criminal. Given the public disgust with this behavior, and the GOP threat to continue using what amount to thug tactics, it is not an unreasonable question.

Thus, the question is whether the Congressional Republicans have entered into a criminal conspiracy by using the tactics they are now employing. More specifically, the inquiry is into whether Republicans are, in effect, obstructing, if not destroying, our government with their actions in violation of the federal criminal code, namely Section 371 of Title 18, which prohibits conspiracies to defraud (read also: obstruct) the government of the United States.  Let’s look at the law, the facts, and the reality.

The Law: Conspiracies to Defraud the United States

The federal government’s general conspiracy statute is set forth in Title 18 of the United States Code at section 371, making it a crime for two or more people to conspire “to defraud the United States or any agency thereof in any manner or for any purpose.”  See 18 U.S.C § 371.  This language is very broad, so what does it actually mean?

There are few better sources to explain this federal statute than the analysis by the Congressional Reference Service (CRS) of the Library of Congress and the U.S. Department of Justice’s Criminal Resources Manual (CRM), which is the guidebook for U.S. Attorneys. Both describe this law in similar terms. (Unless otherwise noted, I have omitted the citations in drawing on their explanations.)

Every criminal conspiracy must have an illicit agreement between two or more persons.  As the CRS notes, “the essence of conspiracy is an agreement, an agreement to commit some act condemned by law…. The agreement may be evidenced by word or action; that is, the government may prove the existence of the agreement either by direct evidence or by circumstantial evidence from which the agreement may be inferred.” CRS further notes, “Nevertheless, mere association, standing alone, is inadequate; an individual does not become a member of a conspiracy merely associating with conspirators known to be involved in crime.”  In short, to become part of the conspiracy takes affirmative and improper words or actions by each of the co-conspirators.

What does it mean “to defraud the United States” as prohibited by the statute?  CRS states that the “fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government” by “deceit, craft or trickery, or at least by means that are dishonest.” Both CRS and CRM note that the plot directed against the United States or a federal agency need not necessarily deprive the United States of money or property; rather, all that is needed is a plan calculated to frustrate the functions of any entity of the United States.

The Justice Department’s analysis states that since the Supreme Court’s 1910 ruling in Hass v Henkel and its 1924 ruling in Hammererschmidt v. U.S. ,this statute is sufficiently broad “to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.” In Hammererschmidt the Court stated: “[I]t also means to interfere with or obstruct one of its lawful government functions . . . by means that are dishonest.” But, the Court noted, mere open defiance of the governmental purpose to enforce a law by urging those subject to it to disobey it is not necessarily defrauding the government under this law. Thus, “obstructing” government when done by “deceit, craft or trickery, or at least by means that are dishonest” is essential to the conduct being criminal.

Have Republicans been obstructing government? You betcha, and they openly admit it and many are even proud of doing so.  Have they employed deceptive practices?  Let’s look at their conduct, and whether their actions are potentially in violation of 18 U.S.C. § 371.

The Facts: GOP Behavior in the Shutdown and Regarding the Debt Limit Ceiling

It first occurred to me that Congressional Republicans might be criminally conspiring when I was reading the New York Times report “A Federal Budget Crisis Months in the Planning.”  Shortly after President Obama began his second term, according to the Times, “a loose-knit coalition of conservative activists led by former Attorney General Edwin Meese III gathered in the capital to plot strategy” to repeal Obama’s healthcare law. At their “secret” meeting place, they developed a “blueprint to defund[] Obamacare.” with conservative organizations providing hundreds of millions of dollars to fund this effort.  At first blush, this certainly read like the stuff of illicit and conspiratorial agreement.

The Times report continues that while the Obamacare opponents did not seek to shut down the government, apparently they hoped that the Democrats and President Obama would simply comply with their demands nonetheless “the activist anticipated that a shutdown could occur” and accordingly enlisted Tea Party members of Congress who they knew both hated Obamacare and had no problem shuttering government operations.  Accordingly, they launched a hell-bent effort to nullify Obamacare by refusing to fund it.  But the legal status of “defunding,” however, is anything but clear.

As I noted in my prior column, defunding a law to nullify it certainly appears unconstitutional.  Former Secretary of Labor Robert Reich agrees, and summed it up nicely: “The Constitution of the United States does not allow a majority of the House of Representatives to repeal the law of the land by defunding it. If that were the case, no law is safe. A majority of the House could get rid of unemployment insurance, federal aid to education, Social Security, Medicare, or any other law they didn’t like merely by deciding not to fund them.”

The Times article, however, notes that the tactic of defunding has been around for years. “Congress has banned the use of certain federal money to pay for abortions, except in the case of incest and rape, by attaching the so-called Hyde Amendment to spending bills.”  In fact, defunding is not unlike “impoundment” was, before it was prohibited.  Impounding appropriate money was first done by President Thomas Jefferson and was long considered an inherent presidential power.  But Richard Nixon’s abuse of the impoundment power resulted in its being severely restricted by an Act of Congress in 1974. (GOP abuse of defunding power should result in its being prohibited as well, and should be undertaken as soon as Democrats control Congress and the White House.)

Notwithstanding the uncertain legal status of defunding, it could still be possible to violate the broad terms of 18 USC 371 given the leading cases interpreting this statute.  Thus, if there is an illicit agreement to obstruct government, which has been undertaken by “deceit, craft or trickery, or at least by means that are dishonest,” the law has been violated.  In fact, there is no doubt in my mind that a number of Republicans have agreed to obstruct government and are employing deceit, craft or trickery, or dishonest means to accomplish their objective.  Yet, as wrong as their behavior may be, I do not believe they should be charged criminally for their actions.

The Reality: Prosecutions Are Not Always Appropriate for Nixonian Behavior

When I tested my analysis of 18 USC 371 and its potential application to the current behavior of the Republicans at the core of this misconduct on a former federal prosecutor, he agreed that there are undoubtedly some Republicans who are acting criminally under this statute, while others are merely acting stupidly, albeit in violation of the broad language of this criminal statute.  He also agreed that even if indictments could be drafted under this law, they should not be.  This, in fact, would be a misuse of the criminal law.

Nixon’s abuses of power resulted in several decades of the increasing criminalization of politics, primarily through an Independent Counsel law that was easily abused for political purposes, and did far more harm than good.  Some scholars believe that criminalizing politics helped produce the current political polarization.  Others claim that the extremism of today’s right wing can be traced to Nixon’s “Southern strategy” and the belief of many conservatives that Nixon was unfairly hounded from his high office by Democrats’ efforts to criminalize his abuses of power (when they had tolerated similar abuses under Presidents Franklin Roosevelt, John Kennedy and Lyndon Johnson). Because no one can win arguments regarding these contentions, it seems wise to do nothing as rash as criminalizing political actions that will likely further exacerbate the problem with these insurrection-minded Republicans.

The solution to the Republican use of extortion by creating short-term, temporary spending and debt limit laws is not the criminal process; rather, it is the ballot box.  Republicans cannot rule successfully by their ongoing political tantrums.  The American public has figured this out, with some seventy-five percent opposed to the GOP’s tactics.  This is not a winning strategy.

Richard Nixon infamously said, “If the president does it, that means it is not illegal.” Nixon was never prosecuted for his illegal behavior, but history has its own way of indicting those who operate outside the rules of regular political order.  It will be the same with Tea Party Republicans who have made Nixonian-style behavior their standard operating procedure. In the end, just like Nixon, they will lose.

John DeanJohn W. Dean, a Justia columnist, is a former counsel to the president.
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  • RZW72

    Even assuming the Congressional GOP’s tactics were illegal (which seems dubious at best) wouldn’t they have legislative immunity per the Speech and Debate Clause?

    • Dolores Madrid

      It was not speech and debate it was their actions.

  • Samuel Charles Salter

    We all hope they will lose, but history has proven that policy of avoiding a fight can lead to disaster we only have to look to the past ,does the name Neville Chamberlain ring a bell

  • Dr. Conspiracy

    Interesting bit of commentary, bit I think the Political Question doctrine would keep the courts away from adjudicating the issue.

    • Hugh Roarty

      The Constitution states that the tree branches of government are separate but equal. If the Legislative Branch were to take specific action, by positive assertion or by omission against the Executive Branch, then the branches would not be equal. The Executive Branch would be subservient to the Legislative Branch. In other words, the Legislative Branch does not have a
      “line item veto”.

  • Grand1

    I think we need to differentiate between the party in Congress and the party as a corporation. The Party in Congress may change or challenge whatever they want legislatively. If not, most would be under indictment for many crack pot proposals introduced as bills. As note by Mr. Dean, the Congress may not have the constitutional power to defund a law but that does not prevent them from doing so in budgets. No, the Republican Party outside of Congress should be the target of any conspiracy or sedition investigation. What a Congressman does or says in caucus with other Republicans falls into the grey area of private behavior versus official activities. To conspire as a political body to overthrow the United States government would clearly be a criminal activity. To conspire as a political party to shut down the United States government, certainly comes close, does it not? What is the tax status of the national Republican Party? Donations are not deductible but it is not a “C” corporation either.
    So the fundamental question is whether Meese & Co. conspired to obstruct the law (ACA) through deceit, craft or trickery as a private organization with a tax exempt status or whether it was an official activity of Congress members. Either way, the Republican Party as an active participant in the conspiracy should lose its tax exempt status or Mr. Meese et al should be indicted.

  • BrianB

    I am curious on why Mr. Dean is so anti-Republican?
    Mr. Dean, you use a quote from the former Secretary of Labor Robert Reich’s comment about how unconstitutional the House’s actions are, in regards to unconstitutional behavior, do a little research in Obama’s actions when changing the laws of Obamacare, this to is unconstitutional.
    I would hope your next article includes a more balanced perspective on our Constitution.

    • Rick Abath

      Sorry Brian, “We are not working on or drawing up articles of impeachment. The Constitution is very clear as to what constitutes grounds for impeachment of the President of the Untied States. He has not committed the kind of criminal acts that call for that.” Republican Representative Bob Goodlatte of Virginia, 7/13/14, Chairman of the House Judiciary Committee, the Committee responsible for drawing up articles of impeachment.

      Ironically the reason you believe that the president HAS committed impeachable offenses is because you have bought the lies the Republican party have knowingly and intentionally constructed. Which is pretty much what this article is about.

  • Roger T. Yokubaitis

    What patent hogwash! Dean assumes without demonstrating that the Republicans caused the US government to shut down, when, in fact, the Democratic underlings in the Senate followed orders from the president and shut down the government. In reality, the first revenue bill originated in the House and sent to the Senate provided for full funding of the US government except for Obamacare. In other words, had the Senate passed the House bill and had the president signed it, the government never would have shut down and the president, the Senate and the House would have been left with a fight over funding Obamacare only, but the government would not have shut down. However, the president told the Senate Democrats not to pass the House bill because Obamacare was not also funded and the president and the Senate instead shut down the government and announced they would not negotiate the issue . It was as simple as that. Indeed, for the following two weeks, the Senate and the president could have ended the governmental shutdown at anytime by passing that same House bill, but they did not do so and they did all they could to ignore the House bill and to make every argument they could devise that the Republicans shut down the government, which was all one big lie for the reasons stated above.

    In truth, the president, for some unknown reason, three years earlier, did not get the Democratic House to fund Obamacare when the president signed the bill and the president then waited until this year to secure funding from the House for Obamacare. His oversight resulted in having to get the funding from a House controlled by Republicans, and you know the rest of the story.

  • http://www.howwegotswindled.com/ E. Henry Schoenberger

    John Dean has paid his dues and learned the hard way. And Dean has become a great American on his path to enlightenment. His book – “Worse than Watergate” should be must-reading for every student of government in high school and college. This piece has furnished America with the perfect legal logic to understand the material substance of the shutdown, and the 5 years of war against Obama and against the social welfare of we the people to obstruct and blockade Congress. The creationist Teapublican Christian American Nation motivated by racism, stupidity and money from the sociopathic greedy billionaire Kochs and their equally sociopathic buddies has been led by: John Boehner, Cantor, Ryan, Issa, McConnell – and Ted Cruz, the Dominion creationist who has follow in the foot steps of the Koch’s father, who founded the John Birch Society, and Joe McCarthy.
    I do not agree with the premise that they will lose like Nixon, because religious zealots never go away – look at the Middle East and all the past that is prologue. And the Teapublican Party of Americans willing to act like Terrorists replete with ransom demands is far more dangerous and destructive to our Republic than Nixon, who at least was smart and did some good things, in spite of fixing his re-election by getting rid of Edmond Muskie – “dirty trick” Time is of the essence, therefore, it is essential to the future of our Republic that we indict the leaders of the Blockade and conduct public hangings to exorcise the Seditious Conspirators as quickly as possible before they cause more damage – like pushing our Republic off the fiscal cliff into a default.
    I understand why Dean compares the Teaparty’s obstruction of Congress to what Nixon did, but this is geometrically different than a mere power grab. This is the manifestation culmination of the 30 war against the middle class and the poor. Nixon was not close to the un-American activities evidenced by the actions of the Teapublican leaders and their financial benefactors including all the Teaparty “non-profit” foundations like Heritage. (I am a blazing progressive who voted for Nixon over McGovern who wanted to raise estate taxes to 90%, which I believed was confiscatory).
    To also learn why the leaders should be indicted for Seditious Conspiracy which is easier to try than a Constitutional prosecution that Dean has carefully argued for federal prosecutors: http://www.the5thestate.net

  • Brian Miller

    “fraud covered by the statute reaches any conspiracy for the purpose of
    impairing, obstructing or defeating the lawful functions of any
    department of the Government”

    Would this apply to Fast and Furious. Would this apply to Obama’s blatant disregard and unwillingness to enforce immigration laws, going so far as to sue states that do? Benghazi? (okay, you can avoid that last one)

    I love the title of this article: Is REPUBLICAN obstructionism criminal. Let’s not bother to ask about Democrat obstructionism. Everybody loved Wendi Davis for her fillibuster, which is pure obstructionism.

    Let’s face it folks, politics in our two party system IS obstructionism. Fillibusters are one of the recognized and beloved tricks of the trade. I’m sorry that you find debate to be too much of an obstruction.

    One last thing. Debt is an obstruction. It impairs, obstructs and defeats the lawful functions of government. It shuts it down completely. And the Democrats want more of it. Is THAT criminal?

  • Steve Rosenberger

    Prosecutions would merely convert clowns to martyrs. It’s important, though, to recognize the underlying illegality / criminality of the Tea Party/GOP actions. They have built their house on crumbling foundations.

  • Brian Miller

    Huh?

  • Brian Miller

    The Republicans are a bunch of goons.

  • Max Herr

    And where does the conspiracy between Barack Obama and Harry Reid to refuse to present and pass an honest-to-goodness budget instead of an endless series of “continuing resolutions” lie along the spectrum line between criminality and mindless obstructionism?

    John Dean is as full of sour grapes as any former Republican I’ve ever seen.

  • REDJI

    Whoa……Grasping at straws are we? This is how our Government is set up: Congress makes the laws…….To think that this is somehow conspiratorial is a huge stretch, in fact, it’s laughable…..Of course, that was probably the intent…….What you are proposing is that if ANYONE disagrees with ANYONE, they have committed some type of crime…..Wow…..
    So, first we could do away with all the political parties, then when the President doesn’t get the legislation he wants passed, we arrest and imprison anyone who voted against his bills……Heck Yeah, that’s legal……..No where that people are free….

  • Hu Flung Poo

    Your best advice always comes from a convicted felon.

  • http://www.firstpeople.us/FP-Html-Legends/TwoWolves-Cherokee.html Marion Young

    I don’t get it. Dean seems to justify treasonous behavior but doesn’t believe we should go after the criminals. I’m hearing this from other high profile political figures. Are they afraid the system might collapse? I don’t get it.

  • Diana Hawkins

    I don’t know. these men need to be punished somehow for this. So what you’re saying is we can & should tolerate illegal behavior that is conspired? Why have laws if we don’t use them when they apply? the Koch brothers make up the first two people who are in conspiracy against our government. I mean I understand what you said and I think that voting should take care of it but what about the gerrymandering? Sometimes it feels like it’s too late to recover from that. These peoole should be in the mud where they belong.

  • rationalhumanbeing

    Mr. Dean crafts an interesting argument that disintegrates with the introduction of several facts that Mr. Dean conveniently ignored: (1) the “power of the purse” — the ability to control how the money is spent — was lauded in the Federalist Papers, before the Constitution was enacted, as the “check” that the House of Representatives has on abuses of power by the other two branches of government; (2) the “power of the purse” is exercised under the constitutional provision that all spending bills must originate in the House; (3) but in order for spending bills that originate in the House to become law — i.e., become the budget of the United States — the Senate must agree by also passing the budget; (4) the last budget that passed both the House and the Senate was back in 2009, when Democrats controlled both the House and the Senate — that budget provided for spending at about 3.5 trillion dollars, larger than any budget in history, and contained about a 1.4 trillion dollar deficit; (5) when Republicans appeared to be in position to gain seats in the 2010 midterm election, no budget was passed even though Democrats still controlled both the House and the Senate — some political commentators opine that this was a deliberate choice by Democrat incumbents so as to not hand Republican candidates an easy attack issue for the election; (6) after Republicans did, in fact, regain control of the House in 2010, the House has passed a budget bill every year since and sent it on to the Democrat-controlled Senate, but the Senate has not passed that budget bill (for example, in 2012, an election year, Senate Majority leader Harry Reid refused to even bring a budget bill up for a vote on the Senate floor) or engaged in conference with the House to hammer out a budget; (7) in the absence of a budget, Congress has been passing “continuing resolutions” to fund the government — those continuing resolutions are based on the spending levels set in the last passed budget, i.e., the 3.5 trillion dollar level, which continue to rely on deficit spending (about 6 trillion dollars total in the past five years) to reach those spending targets; (8) since the House cannot exercise the “power of the purse” through a passed budget that cuts spending, the only remaining vehicle to curb spending is to force negotiations over other measures — for example, “the sequester” that has cut 600 billion dollars of spending was a forced compromise two years ago in order to get the federal debt ceiling lifted, i.e., raise the debt and reduce spending at the same time; (9) in 2013, when once again faced with a Democrat-controlled Senate that would not engage in the centuries-old process of passing a budget, the Republican-controlled House tried once again to force the Senate to do their job, only this time the Senate refused to negotiate, backed by the Democrat President, who also refused to negotiate. As a result, the House Republicans have been described in teh past few weeks as “terrorists”, “hostage takers”, “legislative arsonists” and worse, but the bottom line is this: once the “power of the purse” is removed from the House, there is no check on abuses by the other branches of government. Put simply, the Democrats have figured out a way to remove the House Republicans as an obstacle: by refusing to engage in their sworn duties as Senators, thereby maintaining their power while stripping the House of the ability to stop them. And John Dean, forty years after having been the person providing legal counsel to the only President ever to have resigned that august office in disgrace following a legal scandal, still seems to find grasping the law as “tricky” as it was back then.

    • wheasonjr

      Very good reply rationlahumanbeing. I would guess that Mr. Dean has been socially engineered through education to only see what he is suppose to see and act only what he has been taught is politically correct. I would imagine that his thought on organized social integrity would include having only a president and alleviate the house and senate, just in the case republicans or may get more seats. I would think his thoughts may also include that the Constitution is only for the President to use at will. this would be considering from March 9th 1933 as soon as a President is sworn in he becomes Commander in Chief over the citizens, to be considered the enemy, of the UNITED STATES (an entity of its own).

  • Dolores Madrid

    I think they should be prosecuted like the criminals that they are. It is not just that they have conspired to shut down the government but they have been conspiring to fix elections and I am sure we do not know everything that they have done or plan to do. Once a criminal always a criminal.

  • Thistle

    In the end, just like Nixon, they will lose? How will they lose? Nixon left office instead of sticking around to be impeach and removed. The scofflaws in the Tea Party are making no movement toward leaving office on their own. So…they need to be removed. Impeach!

  • Tojeaux Richard

    My understanding of this is plain and simple….It is time that the Democrats get off their asses and use Parliamentary Rules to affectively bring Bills to the floor for votes, , It has been too many years of them waiting to see what will happen and hiding behind closed doors while the President is being blasted in the Media for doing his job while they let the Republicans run amuck. If all else fails a sit in should be in order to get the Speaker on the Floor to do his work also, of all those involved however, I think that Mr. Cantor if any one should be brought before the Ethics Committee

  • Victor Grunden

    Interesting observation on the criminality of Congress and a former President whom he served while apparently condoning the current President unilaterally changing laws. Would this obscure law apply to the “arranged” bankruptcy of GM which in effect gave owners(stockholders) preference over lenders(bondholders) in direct conflict with case, statute and Constitutional law?

  • http://shanenj.tripod.com/ shanen

    *sigh*
    “short-term hard” -> “short-term harm”

  • Cynthia Gurin

    Nice article, Pollyanna. A wee bit on the naive side to say the answer is the ballot box when gerrymandering and rescinding the voting rights of American citizens are the order of the day. The only way to get the attention of these guys is to show up at their front door with a warrant and a pair of handcuffs.

  • Cynthia Gurin

    Illegal Sale Of Congressional Votes

    The right to vote is not an elected Representative’s personal property to dispose of in exchange for assurance that he/she will not be primaried by his/her own political party.

    The vote is the property of the citizens of each state.

    I will postulate that on October 1′st, 2013, members of the US Congress violated their oath of office by illegally selling their states right to vote, which in turn has resulted in billions of dollars of lost revenue and caused grievous monetary and financial injury to the citizens of each state in the Union.

    I will further postulate that the organizers of the illegal procurement and sale of said votes are also guilty of sedition, having deliberately conspired to cause irreparable harm to the United States of America.

    http://www.theeverlastinggopstoppers.com/2013/10/house-gop-rig-rules-government-shut-down-explosive-video/

  • Lisa Hollingsworth

    This bunch of doo doo must be in response to the GOP condemning President Obama for changing laws which have duly passed Congress and if they need changing be sent back to Congress to be changed. And, you mentioned Nixon it appears we have the same type of President in office now. It is time for the DEMs to allowthe lawmakers to make laws that is what they were elected to do. Don’t talk obstruction because there is certainly enough of that to go around.

  • Mercury

    No law can bind a future Congress, even if it did they are immune from prosecution.

 

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