While Congress is principally responsible for overcriminalization,[1] the federal courts deserve their share of the blame.[2] In their readiness to interpret federal statutes broadly, the federal bench has created expansive rules of direct and vicarious criminal liability.[3] In that process, however, the courts have not stopped to ask the question, “Should the same rules apply to government officials when they engage in misconduct?” The failure of the courts to ask that question may account for some of the expansive liability rules that now exist.
Corporations were artificial entities under the common law[4] and could not be charged with a crime, although corporate directors, officers, and employees could be.[5] Initially, those individuals could be held liable only for their own conduct. Since then, however, the Justice Department has persuaded courts to expand that rule in at least two significant ways.
First, the government has successfully argued that corporate officers and managers should be held liable not only for their own wrongdoing, but also for the misdeeds of personnel they supervise or others below them in the organizational chart—even if those officers and managers had no hand in the illegal conduct. In the food and drug area, for instance, a senior corporate officer can be held criminally responsible for violations of the Federal Food, Drug, and Cosmetic Act committed by line personnel working at one of the company’s facilities.[6] As a result, the criminal liability of some corporations and senior corporate officials can effectively parallel their tort liability.
Second, the government has persuaded courts to adopt the “collective knowledge” doctrine, “under which a corporation’s knowledge is deemed to be the sum of everything that its employees know when they act within the scope of their responsibilities, even if no one person knew all the necessary facts.”[7]
A Pattern of Unequal Treatment
Curiously, the courts never stopped to ask whether the same rules should apply to the government and its officers. If a corporation can be held liable for the wrongdoing of its employees as long as they are not engaging in conduct that is a clear departure from anything that could be considered job-related, why not a government department or agency.[8] If a company president can be held liable for the misdeeds of the firm’s personnel, should not the Attorney General or the FBI Director be held to the same standard?
It is no answer to argue that these government officials could not carry out the duties of their offices if they were forced to manage the day-to-day work of every Justice Department lawyer and FBI agent. Indeed, the same is true of the president of a large corporation. Even if proximate cause principles would render the Attorney General or the FBI Director too remote from an actual violation to be held responsible,[9] what about the U.S. Attorney for the district involved or the Special Agent in Charge of the local FBI office?[10] They have but one office to manage, not the entire nation. A plant manager does not receive immunity from prosecution for the misdeeds of his employees even though he cannot monitor everything going on in his plant. Why should federal officials in a parallel position be treated differently?
The answer cannot be that there are adequate safeguards in place to ensure that no official wrongdoing can occur. Recent “miscues” put the lie to that claim.[11]
The answer also cannot be that there is something special about being a federal official that renders federal officials immune from criminal liability.[12] The Constitution grants Members of the Senate and House of Representatives a limited immunity from criminal prosecution or civil liability—only for statements made on the floor of each chamber[13]—and grants no other federal official comparable amnesty. To be sure, lower-level government employees are entitled to rely on facially reasonable directions from senior officials without fear of incurring liability, even if it turns out after the fact that what they have been ordered to do is in fact illegal.[14] But that is not a special rule for federal law enforcement officers. Any member of the public may rely on the legal opinion of federal officials that particular conduct is lawful.[15]
The point is not that the courts should be eager to hold senior federal officials vicariously liable for the criminal actions of subordinates; they should not. Even if the government were to bring such a prosecution, neither the Attorney General nor the FBI Director should be held criminally liable for the crimes of lawyers and agents that they had no role in committing. The point is that private parties should receive the same treatment.
Conclusion
Courts should refuse to adopt novel readings of criminal statutes that expand criminal liability in order to reach conduct that they find immoral or unethical and that they fear otherwise will go unpunished, whether the defendant is a government official or a private party. If courts looked at the issue from the perspective of government officials’ own liability, they might—and should—hesitate before expanding the breadth of federal criminal laws and might—and should—force Congress to legislate with specificity and precision. After all, sauce for the goose should be sauce for the gander.
—Paul J. Larkin, Jr., is a Senior Legal Fellow and Manager of the Overcriminalization Project in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The discussion in this paper is an abbreviated version of the one found at Paul J. Larkin Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 786–90 (2013).
