03:30 - Source: CNN
Smerconish on how coronavirus impacts law enforcement

Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The opinions expressed in this commentary belong to the author. View more opinions at CNN.

CNN  — 

The Justice Department’s request to Congress for certain “emergency powers” during the coronavirus crisis is a first step down a potentially dangerous path.  Among other things, the DOJ reportedly seeks to empower federal judges to extend or suspend normal deadlines for charging and trying criminal cases.

Elie Honig

As a federal prosecutor, you’re always on the clock – and for good reason. The Constitution requires that every case move at a certain speed. Prosecutors must charge a case within the statute of limitations (the amount of time between commission of a crime and indictment, typically five years under federal law).  Federal defendants have a right to be indicted within 30 days of arrest and to be tried within 70 days of indictment (both subject to limited extensions, if agreed to by the defendant and deemed appropriate by a judge).

These time limits are designed to protect the rights of defendants in criminal cases. Our system does not countenance holding defendants in jail indefinitely, or suspending trial without an end date, or allowing prosecutors to bring charges however long they wish after commission of a crime. The very notion of timing, and time limits, is often cast as purely procedural. But in fact, these time limits reflect our fundamental commitment to protecting the rights of defendants.

Plenty of people commit crimes in this country and need to be prosecuted and imprisoned. But the DOJ must do it the right way. As we used to say as federal prosecutors: we’re the Department of Justice, not the Department of Convictions. Prosecutors don’t seek to “win” at all costs, or to imprison as many people for as long as possible; they seek to do justice within the Constitutional framework. Few things are more corrosive to that framework than indefinite detention and limitless prosecution.

We are, of course, in an unprecedented emergency situation. But I have faith that our DOJ and courts can make necessary adjustments within our existing legal framework. Our criminal justice system already has begun adapting to the challenges posed by the coronavirus crisis. Some federal courts are using video conferencing technology to keep cases moving on schedule, even without in-person court proceedings. And if prosecutors absolutely must have more time to charge or try a case, the existing federal rules allow prosecutors to seek an extension, either by agreement with the defendant or by order of a judge.

This is all new, and everyone is doing their best to meet unimagined challenges.  But if we start to abandon our foundational principles, where does it end? The DOJ should withdraw its request for emergency powers and continue to pursue justice – as it has throughout its history – within the existing rules, and consistent with established Constitutional principles.

Now, your questions:

Barbara (Washington): Does the federal government have the legal authority to ban interstate travel to stop the spread of coronavirus?

Yes. Federal law provides that the secretary of the Department of Health and Human Services can make and enforce “such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” between foreign countries and the United States or between states.

Somewhat ominously, the law provides that the HHS secretary may, if necessary, provide for “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected.”  The law also empowers the HHS secretary to suspend imports on certain items from certain countries, as deemed necessary.

The federal government has meaningful enforcement power as well. Violation of an HHS order is punishable by a fine of up to $1,000 or by misdemeanor prosecution, which carries a maximum of one year in prison.

Tim (Canada): Regarding the senators who sold their stock shortly before the market downturn, could any of them be prosecuted for insider trading?

Incredibly, the answer before 2012 would have been “no.” Before then, members of Congress could not be prosecuted for trading based on nonpublic information they obtained through their official positions.  But Congress passed the STOCK (Stop Trading on Congressional Knowledge) Act in 2012, which makes members of Congress potentially criminally liable for insider trading based on secret information, like any other person.

Insider trading criminal prosecutions are tricky. The key legal question is whether the subject traded based on material, nonpublic information. Information is “material” if a reasonable investor likely would consider it significant in deciding whether to buy or sell a stock or other security.  This standard is of course not capable of being expressed with mathematical precision, and there is plenty of gray area. Of course information is “nonpublic” if it is not available to the general public. Members of Congress commonly receive private or classified briefings to which the public lacks access, but might choose to act based on a combination of public and nonpublic information, which complicates (but does not foreclose) a potential prosecution.

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    Aside from potential criminal prosecution, the Securities and Exchange Commission could bring noncriminal action seeking monetary and other penalties. And in extreme cases, Congress can expel its own members by a two-thirds vote, though expulsion is exceedingly rare; only 15 senators have ever been expelled in US history. 

    Three questions to watch:

    1. Will Congress agree to the DOJ’s request for emergency powers?

    2. Will new facts emerge about the suspicious trading activity of various US senators?

    3. Will Trump take concrete action compelling private companies to expedite manufacture of essential goods under the Defense Production Act?