Note

Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment’s “Compelled” to Foreign Compulsion

Today, the United States is routinely involved in cross-border criminal investigations. Unlike just a few years ago, however, foreign nations have begun their own investigations as well, in many instances probing the same (mis)conduct as the United States. While a welcomed change to some, intersections between U.S. and foreign investigations have triggered novel constitutional issues for American actors. For the first time, this Note will discuss a question that arises from these intersections: is testimony independently compelled by a foreign sovereign, under threat of sanction, “compelled” under the Constitution’s Fifth Amendment?

This Note argues that it is. To arrive at this conclusion, this Note first engages with the same-sovereign rule, a rule endorsed by the Supreme Court’s recent venture into the extraterritoriality of the Fifth Amendment. Finding that the rule creates an interpretive tension with other terms in the Self-Incrimination Clause (the “Clause”), this Note suggests an alternative rule, one that achieves harmony among terms within the Clause. Following this interpretation, this Note argues that foreign compulsion triggers the Fifth Amendment, even when the United States is in no way involved in the compulsion.

After finding that foreign compulsion is “compelled,” this Note moves on to decide how American courts should treat that testimony. While testimony compelled by U.S. authorities is owed use and derivative use immunity, this Note, upon noting the lack of absolute commitment to any one immunity standard in the Court’s precedents, decides if a lesser immunity standard, such as use only immunity, is more fitting. Acknowledging the weighty concerns to the contrary, this Note concludes that foreign-compelled testimony is owed use and derivative use immunity, but with the caveat that the government may make nonevidentiary uses of foreign-compelled testimony.

Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause

Judge Merrick Garland’s thwarted Supreme Court nomination has divided legal scholars over the meaning of the Appointments Clause. While some believe that the Senate and the President share the power to appoint principal officers, others contend that the President alone has the power to nominate and appoint them. To the former scholars, Article II, Section 2, enables the President to nominate whomever he or she wishes, but it also empowers the Senate to confirm or reject whomever it wishes. Accordingly, the appointment power is divided between the two, meaning it is only exercised when both branches utilize their respective and discretionary powers. To the latter scholars, the same text gives the President the sole power to nominate and to appoint, with appointment subject to the Senate’s mandatory duty to advise and decide on whether to consent. Therefore, advice and consent is a check by which the Senate prevents the President from abusing his or her appointment power, triggered by the President’s decision to nominate. This Note argues that the latter scholars are correct because the Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent. Thus, the precedent established by the 114th Senate of blocking all Supreme Court nominations during presidential election years, which will likely be followed and perhaps extended to mid-term election years, contravenes the nation’s fundamental constitutional structure. By failing to perform its duty, moreover, the 114th Senate also deprived the nation of the benefits that the advice and consent process provides, such as greater accountability for the Senate’s confirmation or rejection of nominations and a more functional government. In doing so, the Senate has placed political expediency ahead of the public interest.

Targeting Detached Corporate Intermediaries in the Terrorist Supply Chain: Dial 2339/13224 for Assistance?

The United States has for decades faced persistent and evolving threats from highly agile and adaptable terrorist organizations. Recognizing the need for more robust domestic counterterrorism efforts in the early 1990s, the U.S. government has since made significant use of the legal system to disrupt inchoate plots and degrade terrorists’ support structures. Among the tools most heavily used on this front have been the material support statutes and the International Emergency Economic Powers Act (“IEEPA”), which aim to deprive terrorists of necessary resources by targeting those who support or do business with them. Though used against hundreds of individuals to date, there has been a dearth of organizational prosecutions in this realm. Recognizing the crucial facilitating role corporate actors often play, the Department of Justice (“DOJ”) has long targeted neutral intermediaries to get at underlying crime, from tax evasion to drug trafficking. Recent cases suggest the DOJ is increasingly comfortable pursuing entities that do business with bad actors, including through novel applications of existing laws.

This Note argues that the material support statutes and IEEPA can and should be applied against corporate actors that do business with terrorists, as a means of both disrupting the terrorist “supply chain” and incentivizing greater private sector cooperation. Examining in particular the potential for prosecution of social media and content-hosting companies, encrypted messaging providers, and nontraditional financial intermediaries exploited by terrorists, this Note argues that a credible and carefully wielded threat of terrorism-related charges would be an important addition to prosecutors’ toolkits where appeals to good corporate citizenship fall flat. An effective all-tools counterterrorism strategy requires imagination and adaptation. This Note argues the material support statutes and IEEPA are tools that can be brought to bear against those that play the role of willing supporter or are otherwise indifferent to the harm they facilitate.

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