Archives for November 2017

Inaccessible Criminal Codes and Their Domino Effects

On October 4, 2017, the Sentencing Reform and Corrections Act of 2017 (“SRCA”) was reintroduced in the Senate with bipartisan support. A version of the bill was first introduced in the Senate in October of 2015, but never received a vote. If signed into law, SRCA would reduce and restrict enhanced penalties for non-violent repeat drug offenders and eliminate the so-called “three-strike” mandatory life provision. SRCA also would apply to pending cases, “where the offense was committed before the date of enactment of this Act,” if a sentence has not been imposed as of the date of enactment,[1] and, would apply to past cases where, before the date of enactment, the defendant “was convicted of an offense for which the penalty is amended…and was sentenced to a term of imprisonment for the offense.”[2] Imprisonment terms may be reduced only if, “the defendant has not been convicted of any serious violent felony, and the sentencing court, after considering the nature and seriousness of the danger to any person, the community, or any crime victims, and the post sentencing conduct of the defendant, finds a reduction is consistent with SRCA and its amendments.”[3] This bill would also provide judicial discretion in the sentencing of certain low-level offenders below the 10-year mandatory minimum.[4]

The Sentencing Reform and Corrections Act is just the beginning of a much-needed conversation regarding reform of the criminal justice system. This post, the first in a series of posts on criminal justice reform, will focus on overcriminalization. For the purposes of this blog post, “overcriminalization,” means “the act of imposing unbalanced penalties with no relation to the gravity of the offense committed or the culpability of the wrong doer. It is the imposition of excessive punishment or sentences without adequate justification.”[5]

Over the past forty years, America has seen a dramatic increase in duplicative federal criminal laws.[6] While many have sought to enumerate federal crimes, the exact count remains unknown.[7] One estimate suggests that there are more than 4,000 federal criminal statutes.[8] Many of these statutes, include mandatory minimums.[9] With the use of mandatory minimums on the rise, the federal prison population has increased tenfold and the average federal sentence more than doubled since 1980.[10] The effects of overcriminalization do not end with the criminal code and excessive mandatory minimums; as many as 300,000 regulatory offenses now have criminal penalties that include prison time.[11]

If SRCA is signed into law, then the Attorney General will be required to submit a comprehensive list of “all criminal statutory offenses” to Congress, within one year.[12] Such a list will be the first of many tools available to begin reining in the ever-expanding criminal code and regulatory offenses.

Overcriminalization does not just affect those who end up behind bars, but also those who are unreasonably prosecuted. A few examples:

  • Bobby Unser, retired racecar driver was prosecuted by federal authorities for driving his snowmobile on protected federal land. Unser and a friend got lost during a snowstorm and were seeking shelter or assistance.[13]
  • In a Ft. Lauderdale park, members of a Christian outreach group were arrested and prosecuted for feeding the homeless. Local rules restricted food sharing.[14]
  • Christian Stanfield, who suffers from ADHD and was a victim of extreme bullying at South Fayette High School, PA, was charged with disorderly conduct under a wiretapping statute, because he recorded the abuse and went to school officials. Charges were eventually dropped.[15]

As these examples show, current application of criminal statutes reaches even the most innocent and sympathetic of “offenders.” Surely the statutes that produced these prosecutions were not intended to criminalize self-protection or charitable acts, and yet they did.[16],[17]

Overcriminalization needs to be stopped and reversed. Legislation like the Sentencing Reform and Corrections Act is a good first step.

Katie Parr is law clerk at Cause of Action Institute.

[1] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Legal,

[6] Cato Institute, Cato Handbook for Policymakers, Chapter 17, Overcriminalization, 8th ed. 2017.

[7] See Ilya Shapiro, Not Everything Can Be a Federal Crime, Cato Institute (March 8, 2012),

[8] Overcriminalization, Right on Crime,

[9] FAMM, What are Mandatory Minimums?,

[10] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 137.

[11] Supra note 6 at 1.

[12] Supra note 1, at 1.

[13] Cato, supra note 4 at 1.

[14] Id.

[15] Sasha Goldstein, Criminal charge dropped against Pennsylvania bullying victim with learning disability who recorded his abusers, New York Daily News (April 14, 2014),

[16] Luna, supra note 5 at 133.

[17] With overcriminalization on the rise, the potential for undercriminalization may also rise. As Douglas Husak put it, “some conduct that should not incur penal liability will be subject to it, and some conduct that should incur penal liability will not be subject to it.” 1, Douglas Husak, Reforming Criminal Justice, Introduction and Criminalization, Overcriminalization, 2017, at 28.

DC courts are becoming the place to muzzle scientists (Washington Examiner)

DC courts are becoming the place to muzzle scientists

by John McGlothlin | Nov 22, 2017, 12:01 AM

Science is mostly known for groundbreaking discoveries, quirky characters, and complicated theories. But there is another tradition which has long been part of the field — scientists being incredibly mean to each other.

Few professions are as inherently competitive as science, where one researcher can completely invalidate the work of another. The resulting rivalries are fierce and emotions often run high. One botanist named foul-smelling weeds after a rival who called his work “loathsome harlotry.” Another storied dispute gave rise to the epithet “disgusting old fart neoliberal hypocrite.”

These arguments are usually settled with a witty reply or more research, but a misguided decision by the D.C. Court of Appeals is now prompting scientists to file lawsuits instead. If not corrected, this mistake will pose a serious threat to scientific inquiry, free speech, and the status of the nation’s capital as a place where open debate is protected.

Read the full article at The Washington Examiner

CoA Institute Files Second Lawsuit for Records Concerning EPA Employees’ Use of Encrypted Messaging App

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a second lawsuit in the U.S. District Court for the District of Columbia against the Environmental Protection Agency (“EPA”) for the failure to disclose records about an ongoing investigation into agency employees’ use of an encrypted messaging application, called “Signal.”  The records at issue—which were the subject of two Freedom of Information Act (“FOIA”) requests (here and here)—include a special report, requested by the EPA Office of Inspector General and generated by an agency contractor, which identifies the mobile applications running on most EPA-furnished devices, as well as documents concerning the agency’s continuing efforts to address allegations of wrongdoing, including the avoidance of federal records management laws.

CoA Institute Counsel Ryan Mulvey: “We now know that a small group of career EPA employees used Signal to avoid transparency.  These employees’ work-related communications—including their messages concerning any proposed efforts to thwart the new administration’s political appointees from carrying out the president’s policy agenda—should have been preserved for disclosure to the public.  Records released by the EPA, however, prove that this preservation never took place.  Now, the EPA has effectively refused to disclose any additional documents that could show how pervasive the use of Signal was and how seriously the agency has tried to rectify deficiencies in meeting its record preservation obligations.”

CoA Institute opened its investigation into the use of Signal at the beginning of the year, following media reports that suggested a select number of career officials were using the application to plan methods for obstructing the Trump administration’s incoming political leadership.  CoA Institute’s investigation was widely discussed in the press, along with Congress’s request for the EPA’s watchdog to independently investigate the matter.

Just hours after CoA Institute filed its first FOIA lawsuit, on March 23, 2017, the EPA’s Office of General Counsel acknowledged that there was, indeed, an “open law enforcement” investigation and, as a result, responsive records would have to be redacted.  The EPA ultimately reconsidered its position and, notwithstanding its active investigation, agreed to release relevant records.  Those records prompted the follow-up FOIA requests at issue in today’s lawsuit.

More information on CoA Institute’s investigation can be found here.

The full complaint can be found here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

Investigation Update: EPA Employees’ Use of an Encrypted Messaging App to Thwart Transparency and Fight the White House

Shortly after President Trump took office, Politico reported that a small group of career employees at the Environmental Protection Agency (“EPA”)—“numbering less than a dozen”—were using an encrypted messaging application, called “Signal,” to discuss ways in which to prevent incoming political appointees from implementing the Trump Administration’s policy agenda, which may violate the Federal Records Act.  These employees sought to form a sort of “opposition network” to combat any shift in the EPA’s mission and to preserve the “integrity” of “objfedective” scientific data collected for years by the agency.

The use of Signal at the EPA mirrored reports about the use of electronic messaging platforms at other agencies, including the State Department and the Department of Labor.  But the EPA seemed to present a particularly potent site for the fermentation of political opposition among the civil service bureaucracy.  As reported by Reuters, for example, “[o]ver 400 former EPA staff members” wrote an open letter to the U.S. Senate, asking that former Oklahoma Attorney General Scott Pruitt’s nomination as Administrator be rejected, and employees in the EPA’s Chicago regional office held a joint protest against Pruitt with the Sierra Club.  Such resistance, as our investigative findings suggested, has yet to dissipate.

* * *

Cause of Action Institute (“CoA Institute”) opened its investigation into the use of Signal following Politico’s report.  We were concerned that Signal might have been used to conceal internal agency communications from oversight and that the EPA had failed to meet its legal obligations under the Freedom of Information Act (“FOIA”) and the Federal Records Act to preserve records of official government business created or obtained on Signal.  The EPA’s less-than-sterling reputation for managing electronic records likely inspired the House of Representatives to seek similar clarification from the EPA Inspector General on the Signal scandal.

In our view, to the extent intra-agency Signal correspondence pertained to employees’ plans, in their official capacities, to fight the White House on policy issues, those records were governed by the FOIA and the Federal Records Act, even if created or received on private devices.  Applicable guidance from the National Archives and Records Administration (“NARA”) on electronic records states as much.  Although some have argued that Signal could have been used in the employees’ personal capacity or “off the record,” such claims rest on “murky legal ground.”  At least to the extent employees used Signal on EPA devices, there should have been some mechanism in place to preserve messages until agency authorities could determine whether federal records laws applied.  Such a mechanism was particularly important given the difficulty of recovering encrypted messages after deletion.

* * *

To date, CoA Institute’s investigation has unearthed previously undisclosed information about the Signal scandal and the EPA’s efforts to address allegations of legal wrongdoing.  In response to our first FOIA lawsuit, the EPA acknowledged that there was an “open law enforcement” investigation and, therefore, many of the records at issue would be withheld in full.  The EPA eventually changed its position on this matter and released a number of partially-redacted records.  Those records corroborate the alarming facts reported in the media and reveal much more.

For example, the EPA Office of Inspector General apparently opened its official investigation into the use of Signal only after reading the Washington Times report on CoA Institute’s FOIA efforts.  As Assistant Inspector General Patrick Sullivan noted:

Figure 1: February 3, 2017 E-mail from Patrick Sullivan to Arthur Elkins et al.

An unidentified special agent then explained how an official “hotline complaint” would be initiated, but only after consulting with IT staff.

Figure 2: February 3, 2017 E-mail from Unidentified Special Agent

The EPA’s administrative offices appear to have been alerted to the Signal scandal before the Inspector General, and only because of the efforts of President Trump’s political appointees.  David Schnare almost immediately highlighted the need for a high-level response.

Figure 3: February 2, 2017 E-mail from David Schnare

Mr. Schnare subsequently resigned from the EPA in March 2017, citing difficulties with “antagonistic” career staff opposed to President Trump’s policy agenda.

The next day, again in response to the Washington Times, another Trump-appointed advisor, former State Senator Donald Benton, described the media reports as “disturbing if true,” and wondered whether the EPA could detect whether Signal had been improperly downloaded on any devices. (Senator Benton also left the EPA following alleged clashes with Administrator Pruitt.)

Figure 4: February 3, 2017 E-mail from Donald Benton

Steven Fine, the EPA’s Acting Assistant Administrator of the Office of Environmental Information and Acting Chief Information Officer, assured Senator Benton that the agency could not detect “app downloads,” but could, in fact, scan devices for already-installed programs.

Figure 5: February 3, 2017 E-mail from Steven Fine

The EPA’s ability to “scan” for the installation of Signal was also revealed during summary judgment briefing against Judicial Watch in unrelated FOIA litigation.  A declarant for the EPA described a software tool known as “Mobile Device Management” or “MDM,” which can compile a master report that identifies the applications running on most EPA-furnished equipment.  Indeed, Mr. Fine likely wrote to Senator Benton with knowledge of the Inspector General’s pending request for “assistance in identifying whether certain mobile apps, including Signal, had been downloaded” to EPA devices.

Figure 6: February 3, 2017 E-mail from Patrick Sullivan

* * *

Figure 7: February 3, 2017 E-mail from Rena Key

Interestingly, an unidentified special agent in the Office of the Inspector General recognized the limitations in retrieving Signal messages, regardless of the agency’s ability to use MDM to identify the relevant devices on which the application was installed.

Figure 8: February 3, 2017 E-mail from Unidentified Special Agent

An EPA contractor eventually generated the requested report in the MDM devices and transmitted it to the Office of Environmental Information.  CoA Institute has a pending FOIA request for a copy of the MDM report.

Records released to CoA Institute also raise or confirm other concerning facts:

  • Based on a list of approved “Terms of Service” agreements, EPA employees never were, and still are not, authorized to download and use Signal. Although various social medial tools are approved for use, Signal is not one of them.
  • Internal agency guidance leaves individual employees with total discretion in determining whether text or instant messages need to be forwarded to an official e-mail address and agency recordkeeping system. Although the guidance highlights the differences between “substantive (or non-transitory)” records and those that need not be retained, there is no clear system of oversight to prevent the unauthorized deletion of electronic records.
  • On February 22, 2017, NARA wrote to the EPA to request an update on the records management issues involved in the Signal scandal. The EPA responded a month later, explaining that its investigation was still ongoing and a final report would be forthcoming.  The agency referred to its existing list of approved “Terms of Service” agreements, as well as its efforts to remind employees of their individual responsibility to preserve certain records.  No specific mention was made of the use of Signal.

As additional information becomes available, we will provide further analysis on the EPA’s investigation into the unauthorized use of Signal.

Selected records from CoA Institute’s FOIA production, excepts of which have been used above, can be accessed here.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

CoA Institute Seeks CFPB Records Surrounding Controversial Appointment of Former Director’s Subordinate to Lead the Agency

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a Freedom of Information Act (“FOIA”) request with the Consumer Financial Protection Bureau (“CFPB”) for all records relating to the last-minute appointment made by the agency’s departing director, Richard Cordray, that made his former chief of staff, Leandra English, deputy director. The move allegedly puts Ms. English in line to take over as acting director, despite President Trump’s recent appointment of Mick Mulvaney to the same position.  CoA Institute seeks to better understand the process by which English was named deputy director, and what process led to her claiming to be acting director.

CoA Institute President and CEO John J. Vecchione: “The CFPB is playing a dangerous game, which threatens to block political accountability of the Bureau. It has created a ‘two-headed beast’ that creates uncertainty in a critical sector of our economy. Americans deserve to know the motivations and legal foundation behind Mr. Cordray’s last-minute decision to promote his chief of staff, potentially in defiance of the appointment of the Executive under the Vacancies Act.”

On Friday, when Richard Cordray officially resigned from his position, he named English as deputy director. Following President Trump’s subsequent appointment of Mulvaney, on Sunday night, English filed a lawsuit against both Trump and Mulvaney asking the court to halt the appointment of Mulvaney as acting director.

CoA Institute’s FOIA request seeks all records of communications regarding the appointment of English, including emails and other communications between Cordray, English, Senator Elizabeth Warren, and others.

The full FOIA request is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

CoA Institute Investigating Taxpayer-Funded Settlements for Sexual Harassment, Discrimination on Capitol Hill

Washington D.C. – Cause of Action Institute (“CoA Institute”) has filed a Freedom of Information Act (“FOIA”) request with the U.S. Department of the Treasury as part of an investigation into the secret  settlement payments of millions in taxpayer dollars to settle cases of sexual harassment and other forms of invidious discrimination by members of Congress and their staff over the last two decades.

CoA Institute President John J. Vecchione: “Powerful testimony, admissions by the Office of Compliance, and numerous brave women speaking out have brought to light sexual harassment and discrimination in Congress. Unfortunately, many questions remain concerning how and under what authority these settlement payments have been made. If taxpayers are footing the bill to settle complaints of misconduct, the American public should know about it.”

CoA Institute’s FOIA request seeks all records and communications relating to taxpayer funds used to settle complaints of misconduct against members of Congress and their staffs. It requests all records, including financial records, relating to settlement payments made over the past 20 years for any allegation of misconduct, including sexual harassment, racial and religious discrimination, and discrimination against people with disabilities.

The existence of settlement payments has been publicly confirmed by the congressional Office of Compliance, which stated that the funds for the payments comes from an account operated by the Treasury Department.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

Opposing Government Retaliation Against Free Speech

Cause of Action Institute Files Amicus Brief in Support of LabMD’s Bivens Claim Against FTC Officials

Cause of Action Institute filed an amicus curiae brief (“Brief”) in Michael Daugherty, et al v. Alain Sheer, et al[1] in support of Appellees Michael Daugherty and LabMD, Inc. in their Bivens lawsuit against certain FTC employees in their individual capacities seeking monetary damages. The Brief argues that the Federal Trade Commission (“FTC”) Act does not displace Bivens or immunize First Amendment retaliation, and that  the misconduct and collusion of individual FTC staff directly infected the investigation and administrative prosecution of LabMD after the company’s CEO spoke out against the agency.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.C 388 (1971), the Supreme Court first recognized an implied private action, directly under the Constitution, for damages against federal officials alleged to have violated a citizen’s constitutional rights.

As our Brief argues, Appellees’ complaint “alleges a straightforward First Amendment retaliation claim actionable under Bivens: LabMD’s CEO, Michael Daugherty, publicly criticized the Defendants’ abusive investigation of LabMD. In response, Defendants retaliated by ramping up the investigation to harm LabMD; bamboozling the Commission into authorizing an administrative prosecution based on false pretenses and stolen files; and then continuing to retaliate against LabMD throughout the enforcement action (including by subpoenaing its CEO’s book drafts and allegedly importuning the creation of false evidence for use against LabMD).”

Importantly, the Brief continues, “Defendants’ conduct led to the destruction of LabMD, formerly a thriving cancer-detection business supporting numerous jobs. That is a plausible Bivens claim. Therefore, Appellees should be entitled to discovery and the opportunity to make their case on the merits.”

Cause of Action Institute adamantly opposes any administrative action that exceeds Constitutional bounds. As the Brief states, “[i]t is never permissible for federal law enforcement to retaliate against citizens or businesses for exercising their First Amendment rights, no matter how vigorously law enforcement may disagree with or is offended by the speaker’s message.”

In March, the United States District Court for the District of Columbia partially rejected Defendants’ motion to dismiss. As Judge Tanya Chutkan wrote, “[i]n the court’s view, Plaintiffs’ First Amendment rights to criticize the actions of the federal government without fear of government retaliation are as clearly established as can be, and a serious escalation of an agency’s investigation or enforcement against Plaintiffs for publicly criticizing the agency would appear to violate that clearly established constitutional right.”[2]

In July, the FTC issued a final rule permitting indemnification of FTC employees in certain circumstances for claims made against them as a result of actions taken by them in the scope of their employment.[3] This general statement of policy relating to FTC management and personnel was published without the opportunity for public notice and comment, pursuant to the Administrative Procedure Act. As the agency stated, “[t]his policy is applicable to actions pending against FTC employees as of its effective date, as well as to actions commenced after that date.”[4] According to Bloomberg Law, the “FTC didn’t mention the LabMD case when it rolled out its new liability protection policy, but Daugherty said he believes there’s an obvious connection. ‘We’re hard pressed to believe this isn’t about us,’ he said.”[5]

Nichole Wilson is strategy officer at Cause of Action Institute.

[1] 17-5128 Michael Daugherty, et al v. Alain Sheer, et al (1:15-cv-02034-TSC)


[3] “Indemnification of Federal Trade Commission Employees,” July 5, 2017; Federal Register Number: 2017-14008

[4] Id.

[5] Bloomberg Law, “FTC Tackles ‘Intimidating’ Threat of Lawsuits Against Staff,” Alexei Alexis, July 12, 2017