We 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.