It is not even halfway through 2017, and already, it has been a fascinating year for those practicing in fields of law that intersect with the law at the highest levels of government.
We’ve had the continuing travels of President Donald Trump’s executive order on travel limitations from several predominantly Muslim countries through various circuit courts – and the 4th Circuit’s consideration of the President’s social media in its opinion. And the country’s judiciary has a new Supreme Court justice in Neil Gorsuch, who missed the confirmation mark of 60 votes but was confirmed after a “nuclear option” rules change in the Senate.
This week featured the testimony of former FBI director James Comey before the Senate Intelligence Committee on Thursday and the release of his prepared remarks to the committee earlier in the week. The President’s social media feed made an appearance there too, with Comey’s meme-worthy line, “Lordy, I hope there were tapes” response to a particular tweet entering the lexicon.
And while BTB won’t make any value judgments on Comey’s testimony or the jurisprudence that might be spawned from Twitter posts, law students can learn two things from yesterday’s events.
When it came turn for Sen. Jim Risch (R-Idaho) to take the microphone, he had this to say about Comey’s statement:
If you don’t want to watch the video, here is the text (via Politico):
SEN. JAMES RISCH: Thank you very much. Mr. Comey, thank you for your service. America needs more like you and we really appreciate it. Yesterday, I got and everybody got the seven pages of your direct testimony that is now a part of the record here. And the first — I read it, and then I read it again, and all I could think was number one, how much hated the class of legal writing when I was in law school, and you are the guy that probably got the A after reading this. I find it clear. I find it concise, and having been a prosecutor for a number of years and handling hundreds, maybe thousands of cases and read police reports, investigative reports, this is as good as it gets, and I really appreciate that. Not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes so we know exactly what happened and we’re not getting some rendition of it that’s in your mind.
COMEY: Thank you, sir.
RISCH: You’re to be complimented.
Now you as a law student may not exactly love legal writing. You might not dislike it so much that you make your aversion to it part of the Congressional record. But the obvious lesson here is: No matter how much you too may hate legal writing, it pays to be good at it. One day, you might get some admiration for your skill in that field when you’re on the hot seat.
The second lesson, strangely enough, does not come from the moment that Columbia Law School’s site crashed after it was given an unholy amount of web traffic by Comey after he discussed leaking a memo to Columbia law professor Daniel Richman and asking him to share it with the media. Trump lawyer Marc Kasowitz – in a statement that may not have met Risch’s high standards of legal writing – said he plans to file a complaint with the Justice Department’s inspector general over the leaked memo.
But the lesson doesn’t come from that either, nor does it pertain to legal writing or legal ethics, though it does pertain to Twitter. It’s about legal research.
In a conversation yesterday, Dan Epps, an associate professor of law at Washington University in St Louis – a man who confirmed with me this morning that he still possesses a functional head – and Adam Liptak, Supreme Court reporter for The New York Times, were discussing the more sinister implications of the phrase “I hope.”
These words are not only part of Comey’s “Lordy” quip – they’re cited in two quotes from Trump directed at Comey;
- “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go,” reportedly said at a private dinner in January in reference to embattled former National Security Adviser Michael Flynn.
- His May 12 tweet: “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
Liptak found this precedent from the 8th Circuit that relates to a case on obstruction of justice:
— Adam Liptak (@adamliptak) June 8, 2017
In McDonald’s case, the district court based the obstruction of justice enhancement on: (1) Callahan’s testimony that, when she visited McDonald while he was incarcerated, he showed her a note urging her not to say anything about the knife; and (2) the letter McDonald wrote to Callahan which stated in part, “I hope and pray to God you did not say anything about a weapon when you were in Iowa. Because it will make it worse on me and you even if they promised not to prosecute you[.]” The district court did not err by finding Callahan’s testimony “totally believable,” nor did it err by imposing a two-level increase for obstruction of justice based on McDonald’s attempts to prevent Callahan from revealing McDonald carried a concealed knife during the bank robbery
And as the conversation continued, SCOTUSblog contributor Victoria Kwan found another obstruction of justice case opinion, the Fifth Circuit in US v. Bedoy, that mentioned the implications behind “I hope”:
Here's another: 5th Circuit affirms obstruction of justice conviction based in part on "I'm just hoping" comment (US v. Bedoy, 827 F.3d 495) pic.twitter.com/9SFPT5MT…
— Victoria Kwan (@victoriakwan_) June 8, 2017
The non-image text here:
Lastly, Bedoy claims that his intent was not to impede the grand jury proceeding but rather to protect Sysy from retribution from other prostitutes or from being deported. Specifically, he cites the numerous instances in his conversations with Sysy in which he worried that “the girls” were “out to get her.”
This argument lacks merit. The prosecution can “prove the defendant[`s] intent or knowledge by `circumstantial evidence alone.'” United States v. Rojas, 812 F.3d 382, 400 (5th Cir. 2016) (quoting United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998)); see also United States v. Sandlin, 589 F.3d 749, 755 (5th Cir. 2009) (“Absent a confession, intent will almost always have to be established by circumstantial evidence.”). Here, sufficient circumstantial evidence existed to allow a rational jury to conclude that he was concerned about a grand jury investigating his relationship with Sysy and acted with the intent to impede that investigation. On July 8, after receiving the first phone call from Mazzei, Bedoy told Sysy, “I[`m] just hoping you haven’t told anyone anything…. Like, ya know, talking or anything like that. Just don’t ah ya know?”
Special counsel Robert Mueller’s investigations into whether or not there were links between the Russian government and individuals associated with Trump’s presidential campaign may circle back to Trump’s interactions with Comey over Flynn and whether or not “I hope” in this instance merits an obstruction of justice case. Elected officials and legal scholars are debating that very topic – whether it’s behind closed doors in the Senate or live on C-SPAN or on social media. And they’re smarter than I am, so we’ll keep watching to see what happens.
But from a legal research view, it’s amazing what you can find on record about something as specific as the words, “I Hope.”
A final appeal for a happy birthday
While we’re on the topic of the federal judiciary, Before the Bar would like to send a social media shoutout to #AppellateTwitter, a great bunch of judges, justices, legal professionals, and educators who follow news in the appellate world. The group’s hashtag came into existence a year ago this week, and they’re celebrating their anniversary.
— Jason P. Steed (@5thCircAppeals) June 8, 2017
In addition to having their own swag, they share their knowledge on #PracticeTuesday. If you’re interested in the world of moot courts and the appeals process, go say hi – they’re a very inviting crowd. They’ll also let you know what Harry Potter house you’re in or what character you are in Game of Thrones as those brands relate to the appellate world.
Great having all of you around!