Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
Federal law defines “domestic terrorism” but inexplicably does not make it a crime. Because there currently is no federal law criminalizing domestic terrorism, some mass casualty attacks – including certain indiscriminate mass shootings – can fall between the cracks and leave federal agents and prosecutors without a crime to investigate and charge.
Lawmakers can and should close this gaping loophole immediately to address the growing threat posed by terrorists who commit mass casualty attacks inside the United States.
After Sept. 11, 2001, Congress passed the USA PATRIOT Act, which added a technical definition of “domestic terrorism” to federal law books: illegal acts that are “dangerous to human life” and intended to “intimidate or coerce a civilian population,” or influence government by “intimidation or coercion” or “mass destruction, assassination, or kidnapping.” But while the new law gave federal agents additional powers to investigate domestic terrorism cases, it did not make domestic terrorism a freestanding federal crime.
Nearly all mass shootings and other violent attacks (including murder and attempted murder) currently can be charged under state laws, but only some can be prosecuted under federal law. For example, federal prosecutors have vast tools to charge attacks relating to international terrorism – but those laws require some connection to a foreign country. In other words, they do not address the purely domestic actor.
Federal prosecutors also can charge a federal hate crime where a defendant commits an attack motivated by “race, color, religion or national origin” of the intended victims. For example, the Pittsburgh synagogue shooter has been charged with federal hate crimes, and the El Paso shooter could face the same charges based on evidence that he targeted Hispanic people.
But the federal hate crime law does not apply to mass attacks driven by motivations other than “race, color, religion or national origin.”
Similarly, federal prosecutors might be able to charge a mass attacker, depending on the methodology employed. Federal prosecutors charged serial pipe bomber Cesar Sayoc with various offenses relating to explosives and weapons of mass destruction. But such charges do not apply in cases involving attacks committed with firearms.
Current law therefore leaves federal prosecutors with no applicable charge in certain types of mass casualty events. To take an extreme example, the horrific 2012 mass shooting at an elementary school in Newtown, Connecticut, likely could not have been charged as a federal crime had the shooter survived. There was no international aspect of the attack, so federal terrorism charges would not have applied. The shooter did not appear to act out of racial or other motive covered by the hate crime law. And the shooter used a firearm but not an explosive or weapon of mass destruction.
The Newtown shooter certainly could have been charged with the state crime of murder for every life taken, but the feds likely would’ve been unable to charge the shooter with anything.
A new statute could give federal prosecutors a hook to charge such cases. That is significant because, as formidable as many state-level law enforcement agencies are, the FBI remains the nation’s premier investigative law enforcement agency. While the FBI can assist on purely state-level investigations, the agency within the US Department of Justice is likely to dedicate more resources to a case offering the potential for federal charges.
A new statute also could result in stronger sentences. Sayoc was sentenced to 20 years in prison for his pipe bombing spree, but had there been a domestic terrorism statute in place carrying a higher mandatory-minimum sentence (of 25 years or life, for example), he would’ve faced harsher and more certain punishment.
President Donald Trump and other political leaders have mentioned other possible legislative changes to address mass shootings. Some bipartisan consensus appears to be forming around legislation to expand background checks. Such legislation would close a loophole allowing purchases without background checks at gun shows and over the internet, but also likely would be met with resistance from the National Rifle Association and aligned interests.
Trump also has endorsed the imposition of the death penalty “quickly, decisively and without years of needless delay” for certain hate crimes and mass murders. But support for the death penalty is dwindling across the United States, and there is little concrete evidence that the death penalty deters violent crime.
Of all the proposed legislative responses, creation of a new federal domestic terrorism statute should be a no-brainer for politicians across the ideological spectrum. There is little political downside, and plenty to gain by standing as a leading voice against staggering acts of violence. And, as homegrown mass attacks emerge as a grave and growing threat, the need for federal legislation specifically punishing domestic terrorism has become impossible to ignore.
Now, your questions
Michael, Canada: The Manhattan District Attorney subpoenaed the Trump Organization relating to hush money payments. Can state prosecutors in New York indict a sitting president?
A state-level prosecutor can indict a sitting president, but the big question is whether such a charge would survive when challenged by the sitting president in court.
Longstanding federal Justice Department policy counsels against indicting a sitting president, though the policy memo itself acknowledges that no court has ever ruled on the precise issue. But state prosecutors operate separately and independently from the federal Justice Department, so the policy is not binding on state attorneys general or district attorneys, who charge and enforce state law.
If a state attorney general or district attorney did indict a sitting president, the president almost certainly would move immediately to dismiss the indictment. A sitting president likely would raise the same core argument articulated in the Justice Department memo: that such an indictment would unduly “interfere with the president’s unique official duties,” effectively paralyzing the executive branch.
A sitting president also likely would argue that state-level charges – which can be brought by elected prosecutors of the opposite political party – are susceptible to political motivation, or at least the appearance of such. Indeed, an attorney for the Trump Organization already has called the Manhattan District Attorney’s Office subpoena a “political hit job.”
In the Trump Organization case, the Justice Department reportedly will bring no additional charges relating to a $130,000 hush money payment to Stormy Daniels shortly before the 2016 election. Michael Cohen is the only person charged with a campaign finance crime relating to this payment, though the Southern District alleged that Cohen acted “in coordination with and at the direction of Individual-1” – Trump – who, as mentioned above, cannot be charged under Justice Department policy. (Trump’s lawyer responded, “We have maintained from the outset that the President never engaged in any campaign finance violation.”)
But according to The New York Times, the Manhattan District Attorney appears to be taking a different approach. The Trump Organization reportedly booked the $130,000 hush money payment as “legal fees” paid to Cohen. If so, then Trump Organization officials might have violated a New York state law that criminalizes falsification of business records. Any person at the Trump Organization who made or authorized such a false entry could face state charges – though it is an open question whether such charges ultimately would stick to the sitting president.
Jeff, Colorado: Will impeachment proceedings help House Democrats get witnesses and other evidence they need, despite roadblocks put up by the White House?
Yes, the existence of impeachment proceedings will be essential to the lawsuits that House Democrats have filed, and will file, to obtain evidence over the objections of the White House and Justice Department.
House Democrats have sued in federal court to obtain the grand jury materials underlying special counsel Robert Mueller’s report. Grand jury information usually is secret, but can be disclosed if “preliminary to or in connection with a judicial proceeding.” House Democrats argue that there is in fact a “judicial proceeding” because articles of impeachment “are under consideration as part of the [Judiciary] Committee’s investigation, although no final determination has been made.”
Expect the Trump administration to use House Democrats’ own hedging against them and to argue that mere consideration of impeachment, without something more formal, is insufficient. House Democrats, in turn, can strengthen their legal hand by passing a resolution formally opening an impeachment inquiry, or at least by declaring unequivocally that an impeachment inquiry is underway.
Expect to see similar legal arguments in the House Democrats’ effort to enforce their subpoenas on former White House counsel Don McGahn and other witnesses. If, for example, House Democrats can point to a formal resolution opening an impeachment inquiry, they can make a strong argument in court that McGahn’s testimony is central to that inquiry. If, on the other hand, there is no formal action, but rather a series of disconnected, hedged quotes from various House members, the legal argument to compel McGahn’s testimony is substantially weaker.
Kristina, Wyoming: How long will it take for congressional lawsuits, filed to obtain grand jury materials and enforce subpoenas, to work their way through the courts?
Even in the fastest plausible scenario, it will take several months to resolve the legal battles between Congress and the executive branch.
In the lawsuit filed by House Democrats to obtain grand jury material from Mueller’s investigation, for example, the parties will file written briefs in District Court (the trial-level federal court) in Washington DC in September. At the earliest, the court will hear oral argument in October. Even if the District Court decides quickly, it will issue its ruling sometime in late October or November.
New York Rep. Jerrold Nadler recently predicted that “we will probably get court decisions by the end of October, maybe shortly thereafter.” He’s likely right, but the District Court’s decision won’t be the end of the case. Whichever side loses automatically can – and almost certainly will – appeal to the District of Columbia Court of Appeals. Even with an expedited schedule, it will take several more months for the parties to submit briefs and conduct oral argument, and for the Court of Appeals to issue its ruling. That should take the timeline to December 2019 or beyond.
And it still won’t be over. Whichever side loses in the Court of Appeals can request review (called “certiorari”) in the US Supreme Court. The Supreme Court is not required to hear a case, and is very selective – typically taking fewer than 2% of all cases seeking review. If the Supreme Court does take the case, tack on many more months for written briefs, oral argument and decision. And even if the Supreme Court declines to hear the case, it takes some time to issue a formal rejection. Bottom line: Congressional lawsuits likely won’t be decided until well into 2020.
And three more questions to watch
1) In the wake of FBI Director Christopher Wray’s order to conduct nationwide threat assessments, what can law enforcement do to better identify and stop potential mass-shooting threats?
2) Will New York Police Commissioner James O’Neill follow the recommendation of an administrative judge and fire Officer Daniel Pantaleo for the death of Eric Garner?
3) Now that a majority of House Democrats favor an impeachment inquiry, will House Speaker Nancy Pelosi and Rep. Nadler take official action?