Can state prosecutors indict Bush?

Maybe state attorneys general or district attorneys can bring corruption and war crimes charges.

Lots of questions and hand-wringing about whether the Obama Administration will prosecute Bush Administration officials for war crimes and other corruption. But I’m wondering whether there might be other avenues.

State courts are courts of general jurisdiction: they handle federal claims all the time, most prominently criminal defense attorneys bringing motions to suppress for 4th and 5th Amendments violations. This generates the question of whether state prosecutors are prosecutors of general jurisdiction, i.e. can they prosecute federal crimes.

The answer generally is no — but that is not for constitutional reasons. Rather, it arises because the criminal statutes in question vest absolute jurisdiction in federal prosecutors.

But not all federal criminal statutes. Consider the federal wire fraud statute, referred to as a “prosecutor’s true love” because of its breadth:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Nope: no jurisdictional limitation there. And for good reason: it’s the oldest federal crime still on the books, and for much of the nation’s history, it was routine for state prosecutors to indict for federal crimes.

I dunno: schemes to violate the law by torturing people, then lying and dissembling about it through electronic media? Maybe. The mail and wire fraud statutes are the most commonly used statutes to indict officials for public corruption.

Perhaps an ambitious state attorney general or local prosecutor might see this as an opportunity to push the envelope and get some press.

At some point, it will have to stop. I wouldn’t be surprised to see a court rule favorably on any Obama Administration motion to quash the indictment on public policy grounds. But that’s a far cry from just refusing to prosecute; it would require an affirmative step, which the administration might not want to do.

Just a thought.

Update: After going around on this with some colleagues and some readers, I think that the answer is that state prosecutors wouldn’t be recognized in federal court to prosecute a federal statute. They would have to be in federal court, because 18 U.S.C. 3231 vests exclusive jurisdiction of federal crimes in federal courts. (So it’s there, but not in the substantive criminal statute). And 28 U.S.C. 547(1) gives authority to federal prosecutors to bring charges “except as otherwise provided by law.” It would be too much of a stretch.

That said, a state prosecutor might very well be able to indict federal officials for violations of state statutes, such as New York’s Enterprise Corruption Law (also known as New York RICO). There is precedent for the notion that a state can’t indict a federal officer for taking an action required or authorized by federal law. But the whole point here is that Administration officials were taking actions forbidden by federal law.

The New York statute applies when someone (among other things) “intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity.” Defining an “enterprise” is usually a headache for a prosecutor, but it wouldn’t be when the enterprise is the Bush Administration. An important case said that the “enterprise” has to have an “ascertainable structure.” I think that the Executive Office of the President qualifies. The ball is in your court, Mr. Cuomo.

New York lawyers with experience on this are encouraged to write in.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.