Rainy day thread: There has been a lot of discussion here about Section 371 and using the crime of conspiring to defraud the United States to charge Trump or others. In the Second Circuit, this charge has long been called a "Klein Conspiracy." 1/10
In 2014, in US v. Coplan, the Second Circuit stated that using Section 371 to prosecute defrauding the United States created "a common law crime, [one] created by the courts rather than Congress[.]" 2/10
The Second Circuit explained "[t]hat fact alone warrants considerable judicial skepticism" about whether such charges are valid. Why the concern? It's because federal crimes should be defined by Congress, not by the federal courts or the common law. 3/10
In Coplan, the Second Circuit stated that the government's defense of the "Klein Conspiracy" charge was based on precedent, not statutory interpretation. 4/10
CA2 said: "There is nothing in the Government's brief recognizable as statutory interpretation--no discussion of plain meaning, legislative history, or interpretive canons. Indeed, in all 325 pages of its brief, the Government does not even quote the text of Section 371." 5/10
Despite these concerns, CA2 affirmed the conviction, concluding that Supreme Court precedent required that CA2 continue to recognize the government's authority to bring a Klein Conspiracy charge. But CA2 found the defense arguments to be "forceful" and "persuasive." 6/10
This is a long way of saying that a "conspiracy to defraud the United States" charge should not be viewed as a slam dunk. It's not frequently charged. Unlike the Second Circuit, the Supreme Court won't be strictly bound by precedent, if a case reaches that court. 7/10
The Second Circuit is filled with superstar judges. The judges in Coplan (Kearse, McLaughlin, Cabranes) were very among them (one is deceased), with almost 100 years of judicial experience. If they were concerned about the validity of this charge, other judges will be too. 8/10
Here is a link to Coplan, which is long, but the relevant discussion is around pages 15-16. 9/10: ca2.uscourts.gov/decisions/isys…
I'm a practicing lawyer and former AUSA, not a law professor, but maybe some of the law professors who are on Twitter (@jedshug, @RDEliason, @jentaub) will have thoughts about this issue or perhaps have already addressed the concerns raised in the Coplan decision. 10/10
Postscript: None of this should be taken as an endorsement of the administration or a criticism of the prosecutors. It's just raising concerns about an important legal issue that will come before a court one day if a Section 371 charge is brought in this investigation.
Post-PS 1/3: I don't want to suggest that 371/Klein charges are exceptionally rare. They definitely are not. But they are less common than bread-and-butter white-collar charges like wire fraud and mail fraud. Also, most uses of 371 are for general conspiracy charges.
Post-PS 2/3: Given that "courts have expressed concerns" about the scope of 371/Klein, DOJ has recommended that prosecutors "consider charging both prongs of section 371 when applicable." As @jedshug noted, OSC has tried to do this, usually joining 371/Klein with another charge.
Post-PS 3/3: Here is a link to the DOJ article on this subject in its US Attorneys' Bulletin from July 2013: justice.gov/sites/default/…
