RUTHFULLY YOURS

The patently coordinated progressive campaign to delegitimize the Supreme Court by personal attacks on the six conservative justices never sleeps. It’s Justice Neil Gorsuch’s turn again in the barrel. Progressives have tried out a number of themes against Gorsuch over the past seven years, to little effect: that he’s arrogant, that he talks too much, that he’s a bad writer, that he’s a plagiarist, or that he did something wrong by selling a house to a Democratic lawyer through an anonymous LLC at below the price he was asking before he joined the Court. Those attacks having gotten nowhere, one of the themes they are still pushing is that Gorsuch misrepresents facts in his opinions.

Given little to work with on this front, they have settled on Gorsuch’s new book, Over Ruled: The Human Toll of Too Much Law, which he co-wrote with a former law clerk, Janie Nitze. Gorsuch and Nitze argue that the explosive growth of federal law has costs not only for liberty and small government in general, but for the individual people who find themselves on the business end of all these rules and the people who enforce them.

Ruth Marcus of the Washington Post branded it “Justice Gorsuch’s book of fish tales.” An attempted smackdown by Ankush Khardori of Politico was headlined “Neil Gorsuch’s New Book Is an Embarrassment.” Their primary charge is that Gorsuch left out important facts from the stories he tells in the book, chiefly the story of fisherman John Yates. But Marcus and especially Khardori are the ones who should be embarrassed. They are straining to miss the point — and Khardori’s piece is full of its own distortions. I’ll discuss below why Khardori and Marcus are off base on the Yates case. In a second part, I’ll cover the other scraps that they throw at the wall and why Khardori’s past record and his behavior in this episode make him an especially unconvincing advocate against Gorsuch on this score.

Facts and Figures

To begin with, Khardori paints a fundamentally false picture of Over Ruled that goes beyond the specific mischaracterizations in his article. “The book,” Khardori writes, “is standard conservative political propaganda — an anecdote-driven, broad-brush attack on legislators trying to solve contemporary social problems and on the executive branch officials trying to enforce the country’s laws.” But, as Gorsuch and Nitze acknowledge up front, “This isn’t an academic work or a legal brief. It is a book of stories — stories about real people, their struggles to make their way in a world awash with law, and the toll on their lives and families.” But the book is far from just anecdotes. It is awash in data, history, graphs, citation to studies, and other detail about the immense growth of law. Marcus is unable to dispute any of this; Khardori doesn’t even mention it to his readers.

Khardori pretends that the book’s argument is only about the burden of incarceration:

If the problem of over-enforcement had actually become ubiquitous, then Gorsuch would not have to trawl through old media stories in order to make his point. . . .  In fact, most federal criminal prosecutions are immigration, drug and gun cases. The largest numbers of federal inmates are in custody because they were convicted of drug, weapon and sex offenses. The story is similar in state prison systems, where roughly 90 percent of the inmates are in custody because they were convicted of a violent offense, property crime or a drug offense.

It is true that most prisoners are in jail for these kinds of crimes — something critics of our prison system rarely acknowledge. But then, it’s not as if Gorsuch has never criticized government excess in immigration, drug, or gun cases, either — to say nothing of criticizing civil forfeiture and supporting lawsuits against wrongful prosecutions. But the high proportion of the prison population that’s locked up for the most serious crimes is partly a result of the fact that those crimes merit longer sentences.

Moreover, the toll of regulations that carry both criminal and civil penalties goes well beyond time served or even the initiation of prosecutions. Criminal investigation alone can be expensive, exhausting, and professionally ruinous. Many cases don’t make the newspapers because they get plea-bargained by defendants who can’t afford to go to public war with the agency that regulates their business. The looming threat of criminal penalties often puts coercive pressure on investigatory targets to accept a harsher civil settlement that won’t appear on any prosecutor’s scorecard. And as for Khardori’s argument about the rarity of prosecution under any given regulation, the fact that enforcement can be selective and arbitrary when there are so many laws to enforce is not much consolation to the people who draw the short straw.

One Fish, Three Fish, Short Fish, Long Fish

The centerpiece of the attack on Over Ruled is the book’s first case study. In 2007, a state wildlife inspector (deputized by the federal government) boarded Yates’s boat, reviewed his catch of 2,000 pounds of red grouper, and identified 72 fish that the inspector measured as under the 20-inch minimum size then imposed by federal regulations for grouper. The agent followed up when Yates returned to dock, did a second measurement, and found 69 undersized fish instead of 72.

That was the last Yates heard until three years later, when he was raided by federal agents. He ended up being charged with three separate federal felonies — not for catching undersized fish (a civil violation, and by then, the regulatory minimum had been dropped from 20 inches to 18 anyway) but for tampering with evidence and lying to federal agents. The government’s theory was that Yates had replaced the 72 original fish with other fish from his catch, but had somehow reduced the number of measurably undersized fish by only three out of 72.

A jury acquitted Yates of lying but convicted him on the other two charges. One charge, under 18 U.S.C. § 2232, was for disposing of property after a search; this carried a statutory maximum sentence of five years in prison. But the other charge carried a 20-year maximum: 18 U.S.C. § 1519, part of the Sarbanes-Oxley statute enacted in 2002 following concerns about document-shredding at Enron.

Prosecutors asked for nearly two years in prison; the sentencing judge commented that the prosecution had “lost sight of some common sense” and sentenced Yates to 30 days in prison, plus three years of supervised release (he had to wear an ankle bracelet). His livelihood as a fisherman was destroyed, costing him what Yates estimates to be $600,000 in wages. Gorsuch and Nitze note that the family lost its house and “now lives in a triple-wide trailer and depends on Social Security income and the extra jobs Sandra [Yates’s wife] manages.”

Yates fought the Section 1519 charge all the way to the Supreme Court. In 2014, Politico even published a lengthy op-ed by Yates himself decrying the overzealous nature of the prosecution and its legal theory. In 2015, he finally won. The Court found that prosecutors had stretched the statute too far. At the time, press coverage and judicial sentiment was strongly against the government’s position in Yates v. United States. Gorsuch and Nitze tell us that the government spent an estimated $11 million prosecuting Yates over a difference of three fish.

Khardori makes a point to note that Yates was a plurality opinion. This is technically true, but in the context of attempting to defend Yates’s prosecution, it’s deeply misleading. The Court was unanimously troubled by the federal government’s pursuit of Yates. Section 1519 criminalizes anyone who “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the relevant obstructive intent. Justice Ruth Bader Ginsburg’s opinion for a four-justice plurality concluded that this statute governed only tampering with a “tangible object” that is “used to record or preserve information.” The fifth vote for Yates came from Justice Samuel Alito, whose concurring opinion did not draw as sweeping a conclusion about limits to what the statute covered, but he agreed that “traditional tools of statutory construction confirm that John Yates has the better of the argument.” While Alito noted that “tangible object” could mean a lot of things, “the last phrase in the list — ‘makes a false entry in’ — makes no sense outside of filekeeping. How does one make a false entry in a fish?”

There was, in short, a clear majority on the Court for the conclusion that Yates had been charged under a statute that didn’t apply to fish. Moreover, Justice Elena Kagan’s dissent shifted the blame to the Congress that wrote such a broad statute and the prosecutors who abused it, describing Section 1519 as “a bad law — too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.” She added that it was “unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.” Which is exactly Gorsuch’s and Nitze’s point.

But the politics of creative uses of Sarbanes-Oxley have changed since 2015. With the deployment of Section 1512(c)(2) of the statute against Donald Trump and other January 6 defendants, it’s no longer fashionable to warn against its abuse. Justice Sonia Sotomayor, who joined Ginsburg’s opinion in Yates, dissented when the Court limited Section 1512(c)(2) in similar fashion this spring in Fischer v. United States (Gorsuch joined the majority in that case). So, suddenly, Gorsuch and Nitze come in for criticism for their skepticism of the Yates prosecution.

The Whole Fish Story

Between them, Khardori and Marcus accuse Gorsuch and Nitze of misleading their readers in two ways: by not discussing Yates’s separate conviction under 18 U.S.C. § 2232, and by not addressing the testimony of a deckhand “who testified that after the first visit, Yates instructed the crew to throw out the fish that had drawn the wildlife agent’s attention and to replace them.”

To start with, it’s simply false that the second conviction is, as Khardori writes, “not mentioned anywhere in Gorsuch’s account.” An endnote (note 17 to the text on page 12, which appears on page 224 of the book and can be clicked through the text in the Kindle edition) tells any reader who cares to check that, at Yates’s trial, “the jury variously acquitted and convicted John Yates of other charges.” Two weeks after Khardori’s article appeared, this outright falsehood has yet to be corrected by the editors of Politico.

If Gorsuch and Nitze had written a book accusing the government of framing innocent people through prosecutorial misconduct, the failure to draw attention to a conviction on a separate charge might be a valid critique. The same would be true if this was a book about courageous people standing up to vindicate their constitutional rights. Many books have been written on both topics. But that misses the entire point of this book. Contrary to the framing offered by Marcus, Yates and his wife are not the “hero and heroine” of the book. They’re just ordinary people who were singled out in disproportionate fashion for a comparatively minor offense. The book doesn’t argue that Yates was entirely innocent. “Without a doubt,” Gorsuch and Nitze write, “a good argument could be made that John’s alleged conduct violated [the] mix of statutory and regulatory rules” under which he fished and under which he was charged.

Four further points are worth noting here: one about overlapping laws, one about proportion, one about trial evidence, and one about class. All three are invisible to Khardori.

First, how much does it matter to highlight the Section 2322 charge? It’s not as if Yates was separately convicted of some totally different crime. The government charged him with two separate felonies for the exact same conduct. That’s the kind of procedural detail a legal brief should disclose, but it doesn’t tell the ordinary reader much about whether Yates should have been treated as a criminal.

Second, on the matter of proportion, assume for the sake of argument that Yates did what the government charged and caught six dozen 18- to 20-inch-long fish out of a catch of thousands of pounds, and hoped he could skate by with the occasional fish here and there that looked close enough to 20 inches. This itself is hardly a grave crime: Indeed, by the time charges were brought against Yates, the minimum fish length had been dropped to 18 inches, so nothing he did in the first place was illegal anymore. (In fact, constant changes to the law by regulatory fiddling are another target of Gorsuch and Nitze.)

The only crime here was a process crime: tampering with evidence. Now, process crimes sometimes need to be prosecuted, if they seriously impede court cases or serious investigations, or if they represent a pattern of governmental abuse of power. But even if you buy the government’s theory, the tampering here is quite minimal: replacing 72 undersized fish with 69 undersized fish. We’re not talking about a highly supervised area such as finance or medical records, where you could argue that the integrity of records is crucial. Fish, by their nature, are not retained as records. Nor is this a case of the kind of mass shredding that happened at Enron after a colossal fraud was revealed, where prosecution naturally follows an effort to cover up a major crime. Yates isn’t a high public official or a man with a gun and a badge, and his job carries no public trust. This hardly seems worth the resources expended or the destruction of a man’s livelihood.

The fact that the government brought two different felony charges on the basis of the same facts changes none of that. It just shows how unnecessary and piling-on it was to charge Yates under a statute with four times the maximum sentence of that available under Section 2232. Nor does it add much to mention that the jury convicted under Section 2232, given that the reader already knows that the jury convicted under Section 1519. Indeed, even Marcus doesn’t bother to mention the Section 2232 charge.

Third, as far as trial evidence, Khardori makes much of the deckhand, whose testimony makes Yates’s conduct look more deliberate. (Khardori doesn’t mention that the deckhand had a criminal record.) As Khardori tells us, “The government presented testimony from a cooperating witness — a fisherman on the boat who worked for Yates — who testified that after the first visit, Yates instructed the crew to throw out the fish that had drawn the wildlife agent’s attention and to replace them. According to the witness, Yates also told them to lie to the government if asked about it.” But if you read the deckhand’s testimony in the joint appendix submitted to the Supreme Court, it is inconsistent: After testifying that Yates told him to throw fish overboard, he later qualified, “I’m not saying that I was told to do it. I’m saying that it was done. And I really don’t remember if it was me, Mr. Yates, or [another man on the boat]. But it was done.”

Given that Yates was acquitted on the charge of lying to federal agents (Marcus informs her readers of this; Khardori does not), it’s reasonable to take the deckhand’s testimony with a certain grain of salt and think that the jury did, too. It’s surely not the case that readers of a book about the overall landscape of federal law will expect a thorough review of the cross-examination of one trial witness in one case.

Finally, there is the matter of class and workplace culture. We expect people in all lines of work to abide by clear rules of law. But Yates isn’t a lawyer or an accountant. He appears to have thought he was simply playing some cat-and-mouse with the civil authorities, not doing something that would bring federal criminal law down on his head. That’s apparent from Yates telling Gorsuch and Nitze that he thought the agent didn’t know much about fish measurement and didn’t understand that “fish expand and contract when they are moved into and out of cool storage and onto hot decks or docks” — in other words, that this isn’t exactly an exact science. It’s apparent even from the deckhand testifying that “Mr. Yates told me to tell them that if they wanted to make sure that the fish was still there, they should have put a mark . . . on their foreheads.” You wouldn’t say that to their faces if you thought they could lock you up for over 20 years for discarding or switching fish.

In the end, how much does any of this matter to the credibility of the point Gorsuch and Nitze are making about the disproportion of the charges against Yates? Look at the contemporary press coverage from 2014–15, much of it sympathetic to Yates and critical of his prosecution, at USAToday (also here), the Washington Post (also here), the New York Times (and here and here), NPR (also here), CNN, and Forbes. None of it gets into the side issue of the Section 2232 charge or the testimony of the deckhand. That strongly suggests that all those outlets came to the same conclusion that Gorsuch and Nitze did: the real story was the government’s egregious misuse of Sarbanes-Oxley.

It’s Khardori and Marcus who are trying to distract from that point by telling a misleading story.