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Should we be held accountable for following ambiguous laws?

I sent this as an e-mail the day after Trump’s indictment by Manhattan district attorney Alvin Bragg on charges related to, but not actually regarding, nominal violations of election law.  My would-be correspondents were Eugene Volokh and Ilya Somin, both of whom contribute to The Volokh Conspiracy, a blog about the law aimed at people who are educated but not educated specifically in the law.  I had hoped they would weigh in on a question of legal philosophy that had been on my mind for a long time and that was (it seemed to me) illuminated by this particular case against Trump.

To be clear, I think Trump is a sleazebag and would be happy so see him held to account for trying to subvert the peaceful transfer of power in the last election.  And, I think, short of convicting him for actual crimes, he really should have been convicted during his impeachment for the “high crime and misdemeanor” of violating his oath to support and defend the Constitution of the United States.

But, as it does to many others who are not specifically motivated by partisanship, the Manhattan indictment smells to me like politics more than law.  And, in its details, it seems like the kind of prosecutorial attitude (choose the person and then hunt for a crime) and prosecutorial overreach (push across the edge of law into unprecedented and disputable territory)  that we should all fear.

Mr. Volokh replied to my missive with a lament that it fell outside his area of expertise and that he could, therefore, offer no legal opinion on it (and he declined, for obvious reasons since I had approached him specifically in his role as legal scholar, to offer a personal opinion on it).

I never heard from Mr. Somin.  It may well be that he never saw my e-mail.

So, the question still stands…


5 April 2023

Mr. Volokh and Mr. Somin,

I am writing you you, as legal scholars who make a point of describing the law for non-lawyers in various public fora, with a question that is not specifically tied to yesterday’s Trump indictment but that might arguably be a part of it: when the law us unclear and/or ambiguous, how is it that people may still be held accountable for following it?  Would that not violate the basic principle of “fair notice”?

We have all heard the stock phrase, “Ignorance of the law is no excuse.”  But, that notion is built on the presumption that having knowledge of the law is, in fact possible — that someone exercising modest diligence could, in fact, ascertain what the law required of them so that they could follow it.

We have explicit prohibitions against, for example, ex post facto laws specifically because they do not provide such opportunity: one can’t follow a law that doesn’t currently exist.

And I imagine, for example, that courts would look dubiously on the prosecution of someone for violating a law that was passed yesterday evening by the legislature but that had not yet been publicly announced; or for violating a law that had been passed last year by the legislature but never been published in the statutes, so that the only record of it being law was in the minutes of the legislative session.  In neither case would citizens have been given a reasonable and “fair” opportunity to know what the law required.

Could not — should not — the same principle — and the same argument — apply in cases where a law is so vaguely worded that two different judges disagree on what it means?  Judges are, after all, supposed to be our official “experts” on what the law is and requires — that is their primary purpose for existence.  If they can’t say for sure, how are we supposed to know?

Yes, we have a system for pushing those kinds of disagreements through various levels of appeal until they ultimately get resolved, one way or another, with a definitive ruling by the Supreme Court (either by its taking a  case and publishing a decision or by its not taking a case and letting the decision of the next-lowest court stand).  And, once those ambiguities have been resolved, there is, arguably, then fair notice to people that what was once ambiguous is now not.

An aside: I have always thought that it would be best if such court-declared clarifications ended up being pushed back into the statutes, themselves.  Otherwise, a citizen trying to understand what the law requires must not only read the statute but also the record of all applicable court decisions across all the various jurisdictions — a task that is not easy even for a lawyer, and that is wholly unreasonable for most non-lawyers…

But, before those decisions have been made and precedents established, the law is still ambiguous.  It would seem like applying those precedents to actions taken prior to the decisions ought to amount to an ex post facto application of the law.  It has always been my contention that, if two different judges have come down on opposite sides of the question of what the law means and whether it applies to a particular defendant, then said defendant ought to be held at that point, by definition, not responsible for having followed the law. A disagreement among judges — our designated experts on the meaning of law — makes it inarguably obvious that the defendent had no clear way of knowing what the law actually required: if two judges, whose primary and formal function is to know what the law requires, can’t agree, then how is some random citizen supposed to know?

I would also extend that beyond judges to other actors within the legal system whose responsibility it is to know what the law says and requires.  I would not include individual policemen in that, since they operate in the field without direct access to the law books (and typically without formal training on the content of law) and often on an emergency time-frame.  But  prosecutors — who are making their decisions with direct reference to the statute books and prior precedents, and with plenty of time in which to ponder the nuances — and executive branch regulators who have been given authority to enforce regulatory rules, rather than statutory ones — but with the same time for reflection and the same ability to examine the text of the regulation and any applicable precedents — have the same formal responsibility that judges do: to know what the law requires so that they may apply it.  As with judges, if different prosecutors and/or regulators can’t agree on what the law requires, then why is it reasonable to expect some random citizen to know?

We have been told, in Trump’s case (and no, I’m not defending Trump — he’s morally despicable regardless of whether he is actually criminal), that the Manhattan prosecutor is applying a “novel” legal theory to come up with the felony with which to charge.  Not only have other prosecutors apparently declined to prosecute on the same set of actions and evidence, but a former head of the FEC — the body nominally responsible for enforcing the election laws that Trump is alleged to have violated — has very publicly declared that the law in question doesn’t apply.

That sounds to me like precisely the kind of situation where the law is ambiguous enough that there can’t be any reasonable assertion that anyone — Trump or anyone else — was given “fair notice” as to what the law required.  And, therefore, it seems not only a stretch but an injustice to apply that law to them in that way.

What am I missing?

Thank you for your time and consideration.



© Copyright 2023, Augustus P. Lowell

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