David R. Henderson  

A Problem with Criminal Law

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It seems as if there's a strong case for the federal government to charge Hillary Clinton with a fairly serious crime. See here for more details.

A former prosecutor named Andy McCarthy states:

Given that Congress's array of campaign finance laws are designed to prevent precisely what the Clinton Foundation has wrought -- namely, the appearance of political influence on sales -- one would think the FBI and the Justice Department would be obliged to investigate.

But from what I understand of the law, there's no such obligation. I believe those things are usually at the discretion of the government. McCarthy probably knows that too but this is just his way of saying, "Hey guys and gals, this is pretty damn serious."

Which brings me to a big problem with the criminal law. Applying it depends on government officials who rarely have the right incentives. In this case, the charge would be brought against the leading Democrat for President and it would have to be approved, most likely, by her former boss Barack Obama, whom her husband, Bill Clinton, campaigned tirelessly for. The incentives aren't exactly aligned in the direction of charging her with a crime. So I wouldn't give it a probability more than about 0.05, unless there's a strong grassroots campaign that cuts across party lines.

I know that David Friedman has written and spoken in the past about why he thinks we can do away with criminal law and have only civil law. I watched the whole of this fascinating and informative talk (it takes 40 minutes) to see if he addressed this kind of issue. Specifically, in a system of civil law, how would such a case be handled? Unfortunately he doesn't. Possibly he addresses it elsewhere.

The whole Hillary Clinton thing got me wondering, by the way, about my former Congressman Leon Panetta. He runs the Panetta Institute and that Institute took donations from "forward-looking companies" even while he was Director of the Central Intelligence Agency and Secretary of Defense. He recused himself at the time and turned over the running of the Institute to someone named Sylvia Panetta, i.e., his wife. While he was Secretary of Defense, the Institute took an $8,000 donation from defense contractor Lockheed Martin. Granted that is rounding error on the donations that the Clinton Foundation took, but still, it seems worth looking into.


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COMMENTS (12 to date)
CMOT writes:

Private citizens can bring RICO suits in civil court, an example of which is

"Judge Orders Clinton Foundation Racketeering Case To Trial ... The order, entered Friday and obtained by the Washington Examiner, came days after Larry Klayman of Freedom of Watch filed a lengthy civil complaint against the Clintons and their foundation in the same court."

[From http://m.washingtonexaminer.com/judge-orders-clinton-foundation-racketeering-case-to-trial/article/2565272 Please give sources for your quotes. -Econlib Ed.]

D F Linton writes:

Just allow loser-pays private criminal prosecution as is the case in the UK and I believe Canada, but don't allow the government to take over or quash such cases

khodge writes:

That's pretty much the standard operating procedure for the party in power. Add to that the popular press kowtows to the current party in power while whoever chooses to bring a civil suit is accused of playing politics (as if only one side plays politics).

I do not think that there is an answer which is why I think removing most of the relevant laws is the fairest approach.

Thomas Sewell writes:

I hesitate to speak for Dr. Friedman, but it seems to me his obvious response would be that under a civil law regime, it's up to the damaged party to bring a suit. That's sort of the point.

So you'd never run into the situation where the authorities decline to bring a suit, because they aren't the ones expected to. In this specific situation presumably someone who lost out because of the influence garnered by the bribes would bring the suit.

Nathan W writes:

If American democracy really wanted to get rid of political influence on sales, they would outlaw corporate and union donations to politicians.

Nathan W writes:

Isn't that basically how the whole system works? Pharmaceuticals, military, etc. The whole system should go on trial, not Hillary.

David Friedman writes:

I have argued in various places that one problem with the criminal law is that, as I sometimes put it, the king's friends can get away with murder. In chapter 66 of the third edition of _The Machinery of Freedom_ I put the point as:

"One feature of criminal law in the U.S. at present is that only the government can prosecute it, which is convenient for criminals who commit crimes that the government approves of."

There are recordings of a number of talks I've given under the title "Should We Abolish the Criminal Law" webbed at:

http://www.daviddfriedman.com/MyTalks/MyRecentTalks.html

And I expect that they contain more extensive discussions of the problem. One of my usual examples is the Black Panther shooting in Chicago, which was pretty clearly a case of murder by the police but was never prosecuted as such. It did, however, eventually result in a civil suit settled for a substantial amount of money.

David R. Henderson writes:

@David Friedman,
Thanks. Yes, I’m familiar with the fact that you’ve raised the problem I discuss here. What I wondered in the post above, though, is what solution you would suggest in such a case as Hillary’s. Who would have standing to sue?

David Friedman writes:

Then I misunderstood your question.

In a society without criminal law but with a government, there will be some torts whose immediate victim is the government, so one answer is that Hilary was arguably violating her terms of employment and could be sued for doing so. But that doesn't solve the problem of torts "against" the government that the government approves of.

In saga period Iceland, which had a legal system in which all prosecution (and enforcement!) was private, the solution was for some offenses to be ones for which anyone could sue. Typically, if more than one person wanted to, they drew lots.

I've also suggested making tort claims marketable, as a better approach than class actions to the dispersed victim problem. In such a system, each citizen would have a potential claim on Hilary for (say) a dollar. Middlemen would buy up large numbers of small claims, rebundle them (three million claims for tort X), and resell to entrepreneurial attorneys, who would then sue.

Phil writes:

Similarly, the Constitution states that the Congress has the power to "raise and support armies, but no appropriation to that use shall be for a term longer than two years." The purpose - which is clear from the deliberations of the constitutional congress and Federalist papers - is to prevent the creation of a standing army. For much of the last century, the army routinely received 3- and 5-year appropriations. Why? It serves the interests of both the legislature and executive. Under current rules of jurisprudence, a general taxpayer has no standing to sue to enforce such a provision. In fact, I cannot imagine a situation where anyone would have standing to sue. There should never be an unenforceable law.

David R. Henderson writes:

@David Friedman,
Thanks.
@Phil,
Interesting. So you’re saying that taxpayers should have standing to sue, right?

Phil writes:
@Phil, Interesting. So you’re saying that taxpayers should have standing to sue, right?

My primary point was agreement with the notion that if a law is to have meaning and effect, it must be enforceable; and in practice, justly enforced.

Taxpayer standing is a deceptively complex topic and beyond the scope of this blog topic. But, yes, I believe there should be a judicial process whereby the taxpayer can produce the incentive for government officials to act lawfully.

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