The Breakfast Table

When the solicitor general has to defend the indefensible.

Entry 5: When the solicitor general has to defend the indefensible.

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Candidates for U.S. citizenship take the oath of allegiance during a naturalization ceremony for new U.S. citizens in New Jersey on Feb. 22.

Kena Batencur/AFP/Getty Images

Maslenjak v. United States is only the latest example of something that crops up every term or so: a case in which the solicitor general’s office gets slapped down over a case (or an argument) the United States never should’ve made in the first place. The reason the solicitor general finds himself or herself in this position is that the federal government’s prosecutorial powers are dispersed among more than 90 U.S. attorneys offices, in addition to “Main Justice” (the headquarters in D.C.), and there’s not a huge amount of oversight or coordination in run-of-the-mill prosecution. If the government loses a case in the district court or the courts of appeals, a prosecutor needs an approval from the solicitor general to take an appeal. If the government wins, however, then the case may never get review until the losing defendant files a cert. petition, at which point the solicitor general either has to confess error (which the office is generally reluctant to do) or defend what may turn out to be rather indefensible.

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So, Maslenjak. Divna Maslenjak is an ethnic Serb from Bosnia. In 1998, she and her family sought refugee status here in the United States. She claimed during the refugee application process that her family feared persecution in part because her husband had evaded service in the Bosnian Serb Army. That was false: Not only did he serve, but his brigade was involved in the Srebrenica massacre. And Maslenjak knew that he had served.

When she applied for citizenship, Maslenjak swore she had never given false information to a government official to gain entry into the United States. Her citizenship application was approved, and she was naturalized. Only afterward did the government discover her husband’s participation in the Bosnian Serb Army and her false statements.

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At that point, the government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U.S.C. Section 1425(a). So far, there’s nothing unusual about the case, and I can easily imagine a jury convicting her: Immigration authorities might well have decided to reject a citizenship application made by someone who claimed fear of persecution while hiding the fact that her husband was involved in a group that perpetrated the massacre of thousands of Muslims.

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But—and this is the core of the case—the district court instructed the jury that it could convict Maslenjak without having to prove that her false statements were material to, or influenced, the decision to approve her citizenship application. And the court of appeals affirmed the conviction. According to those courts, any lie could constitute a crime.

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All nine justices (the opinion for the court was written by Justice Elena Kagan, and there were concurring opinions by Justices Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito) rejected that aggressive reading of the statute. They pointed out (apropos of my prior post) that under the government’s theory, a naturalized American who failed to disclose that she drove over the speed limit when asked “Have you EVER committed … a crime or offense for which you were NOT arrested?” could be prosecuted years after her naturalization. The court warned that this would “give prosecutors nearly limitless leverage—and afford newly naturalized Americans precious little security.”

Instead, the court required that the government show that the false statement played some causal role in the government’s decision to grant citizenship: “the most natural understanding” of the words in the statute, Kagan wrote, “is that the illegal act must have somehow contributed to the obtaining of citizenship.” There are two kinds of cases that would satisfy this standard. The first are cases in which the facts the defendant misrepresents would themselves disqualify the citizenship application. (For example, if the applicant lies about a disqualifying felony conviction, that would be enough.) The second category involves what the court calls an “investigation-based theory”—that is, cases that “throw investigators off a trail leading to disqualifying facts.” In this category of cases, what the government must show is that if the defendant had told the truth, the government would have undertaken further investigation, and this investigation would have unearthed a disqualifying fact. The court sent Maslenjak’s case back to have her tried before a jury—one that will be properly instructed about this standard and these two categories of cases.

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The court’s decision was a completely sensible reading of the statute. The government’s was bizarrely draconian. I can’t imagine the solicitor general’s office was happy it had to defend that reading.

This is not the first time in recent years we’ve seen the solicitor general’s office put in such a position. Consider Bond v. United States. There, a U.S. attorney prosecuted Carol Bond under the Chemical Weapons Convention Implementation Act of 1998 for putting a caustic substance on the door, mailbox, and car of her husband’s paramour. Of course, Bond had committed a crime. But was it really this crime? Here, as with Maslenjak, all nine justices said no. An ordinary speaker would not have thought Bond’s feud with her former best friend was the kind of act that concerned Congress, which passed the Implementation Act to deal with terrorism rather than sordid triangles. What Bond did was a garden-variety state-law offense and should have been prosecuted that way.

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Or consider Yates v. United States. John Yates threw some undersized red groupers off the side of his fishing vessel after he’d been caught and told to return to port by a state conservation officer who’d been deputized by the National Marine Fisheries Service to enforce federal law.

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Yates was charged with getting rid of the fish in order to impede a federal investigation, in violation of 18 U.S.C. Section1519. That section was part of the Sarbanes-Oxley Act, which was enacted to protect investors from things like the Enron scandal. The act makes it a crime when someone “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. The government argued that the fish were a “tangible object” and thus Yates’ actions fell within the scope of the statute.

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Five of the justices disagreed. Justice Ruth Bader Ginsburg’s opinion for herself, the chief justice, Justice Stephen Breyer, and Justice Sonia Sotomayor said that the term “tangible object” should be understood for purposes of the statute to refer to ways of recording or preserving information and not to any object that exists in the world. Alito wrote separately to say that typical tools for interpreting statutes showed that “tangible objects” should be understood in conjunction with the words record and document.

The most interesting part of the justices’ opinions, other than all the bad fish-related jokes they made along the way, came at the end of Kagan’s dissent. There, she wrote:

I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

That’s really the point of these cases. And it’s something we need Congress, and not just the court, to fix.

Read the previous entry. Read the next entry.

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