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.
President Donald Trump has placed the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program squarely in his anti-immigration crosshairs. Ever since Trump took the oath of office, DACA has been living on borrowed time, which may soon run out – with potentially devastating consequences for hundreds of thousands of young people.
In September 2017, Trump tried to end DACA, which protects from deportation undocumented immigrants who came to the United States as children with their parents. But a series of decisions from federal trial and appellate courts put Trump’s efforts on hold and allowed DACA to continue temporarily.
Do not be lulled by the temporary maintenance of the status quo. The skies are darkening for DACA. The case heads to the Supreme Court in its upcoming term, and this week the Justice Department formally backed Trump’s effort to end the program. The Justice Department surprised exactly nobody by siding with Trump, arguing that DACA “at best” is “legally questionable” and “at worst, it is illegal.”
How the Supreme Court will rule is uncertain, but watch for a 4-4 split along the Court’s ideological fault lines. Expect the four conservative justices, all appointed by Republicans (Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) to support the Trump administration’s effort to end DACA, and the four liberal justices, all appointed by Democrats (Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elana Kagan) to vote against it.
In that case, Chief Justice John Roberts will likely cast the swing vote, as he has done in recent blockbuster rulings, including some pertaining to immigration. Roberts, a nominee of President George W. Bush, has stalwart conservative credentials, but over time he has become more unpredictable and has sided with the Court’s liberal bloc in high-profile cases. He stunned many by casting a decisive vote to uphold the Affordable Care Act in 2012, and in the most recent term, Roberts sided with four liberal justices to block the Trump administration’s effort to add a citizenship question to the census in the absence of a legitimate explanation of reasons from the White House.
Despite his occasional tendency to break from traditional ideological expectations, Roberts remains predominantly conservative in his rulings. And core conservative ideology tends to support broad executive powers – and oppose judicial second-guessing of executive-branch policymaking – which would seem to favor the administration’s efforts to repeal DACA.
If DACA does fall, the result will be potentially catastrophic. DACA protects an estimated 700,000 undocumented immigrants who arrived in the United States before age 16. If stripped of DACA’s protections, all of those people will be subject to deportation – even if they have committed no crime and done nothing wrong.
Trump himself has described DACA protectees as “good, educated and accomplished young people.” To use them as political pawns to gain other immigration concessions – including border wall funding – is distasteful. And to defend efforts to upend the productive lives of hundreds of thousands of young people in the United States, as the Justice Department has done this week, is simply unconscionable.
Now, your questions
Kevin, Germany: As part of Epstein’s nonprosecution agreement in Florida, federal prosecutors agreed not to charge certain co-conspirators. Was the agreement legal, and can it still be enforced after Epstein’s death?
This 2008 nonprosecution deal is absolutely bizarre. In my 14 years as a prosecutor, I handled and supervised thousands of cases and never immunized a defendant’s co-conspirators as part of a deal with that defendant, or even heard of such a thing.
If Epstein’s co-conspirators are eventually charged, they surely will point to the Florida deal and argue: “But the Justice Department already agreed not to prosecute us, in the Epstein deal.” However, I do not think the Epstein agreement ultimately will protect his co-conspirators.
First, a federal judge has ruled that then-US Attorney Alex Acosta broke the law by failing to notify Epstein’s victims of the deal. While the judge did not prescribe a specific remedy, it is difficult to imagine Epstein’s co-conspirators getting a free pass because of an illegal agreement.
Second, any charges against Epstein’s co-conspirators likely will come from the Southern District of New York, which was not a party or signatory to the 2008 agreement between the Southern District of Florida and Epstein. Generally – as the Southern District of New York previously argued in Epstein’s case, citing precedent – an agreement by one US attorney’s office does not bind another US attorney’s office.
Finally, now that Epstein is dead, arguably there is nobody left who has legal standing to enforce the agreement. Epstein himself might have been able to argue that, as a signatory to the agreement, he had the legal right to enforce it. But the co-conspirators themselves were not parties to the deal, and hence cannot come in as outsiders seeking to enforce (and benefit) from it.
Scott, Texas: Regarding the Southern District’s investigation of Epstein and his associates, what happens if prosecutors find evidence of other unrelated crimes?
It is common for prosecutors to start investigating a subject for one suspected crime but then to find evidence of another unrelated crime. There is no law that prosecutors can charge only those crimes that they originally set out to investigate. To the contrary, it is entirely legal and appropriate for prosecutors to go wherever the evidence takes them – even down unexpected roads.
Prosecutors often discover unexpected crimes because they examine basic information about a subject’s history, including financial records, tax records, phone records and emails – all of which can reveal or suggest wrongdoing. And in longer-term investigations, prosecutors often develop cooperating witnesses, who can guide prosecutors through previously-unknown crimes committed by the subject. I once had a case that began as an investigation of a subject for extortion. After we flipped one of his criminal associates, we learned that the subject also had engineered a string of armed robberies and a murder.
If the Southern District finds evidence on Epstein’s associates unrelated to the sex trafficking ring, it has several options. It can charge the unrelated conduct, assuming there are applicable federal charges and the conduct happened within the Southern District’s geographic venue. If the unrelated conduct violated state (but not federal) laws, then it can refer the case to the appropriate state-level prosecutor. Or, if the unrelated conduct did violate federal law but happened in a different district, the Southern District can refer the case to the appropriate US attorney’s office. Bottom line: anything the Southern District uncovers about its subjects, even if initially unexpected, can and likely will be charged.
Ethan, Ohio: Do “red flag” gun laws violate the basic constitutional right held by American citizens to bear arms?
“Red flag” gun laws allow judges to issue orders temporarily confiscating firearms from people who pose a danger to themselves or others. Typically, either law enforcement officers or family members of the subject apply for such confiscation. Thus far, over a dozen states and Washington, DC, have some version of a red flag law.
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Public and political support for red flag laws is strong. In the wake of recent mass shootings, Trump has voiced willingness to support such laws, though he has backtracked substantially in recent days. And a recent Fox News poll showed that 81% of the public – including 75% of Republicans – support such measures.
Opponents of red flag laws argue that they allow courts to take away property (the firearm itself) and liberty (the right to own a firearm) without due process – meaning without a fair opportunity to contest the order. And the reality is that red flag court proceedings are “ex parte” – only the judge and the person seeking the order are present, but not the subject of the order. And the subject can lose his firearm even if not convicted of a crime.
On balance, however, due process arguments should not prevail because most red flag laws – which aim to protect the public against potentially dangerous individuals owning firearms – already satisfy due process requirements. For example, the person seeking a confiscation order must convince a judge that the subject poses a threat. And the confiscation is only temporary, subject to challenge and renewal at regular intervals.
Three questions to watch:
1) How will a jury interpret and apply Florida’s “stand your ground” law in the controversial trial of a man who shot and killed an unarmed victim during a dispute over a parking space?
2) Will Trump continue to retreat from his previously stated support for universal background checks on firearms purchases?
3) Will the White House try to block congressional testimony by former Trump campaign manager Corey Lewandowski, who has stated he is “an open book” and “happy” to testify?