The Impact of a Trump Presidency on Criminal Law

• Publication year: 2017

The Impact of a Trump Presidency on Criminal Law

Don Samuel

THE IMPACT OF A TRUMP PRESIDENCY ON CRIMINAL LAW

Don Samuel^*

Introduction

When asked to comment on my views of the impact of a Trump presidency, my initial questions were, "Do you mean as a criminal defense attorney? As a citizen of the United States? Or as a citizen of the world?" My answers would differ depending on the lens through which I try to predict what might happen in the next four years.

Within this Article, I will elaborate on my views on the Trump Administration in the following three capacities: (1) as a criminal defense attorney; (2) as a United States citizen; and (3) as a citizen of the world. Under each of the three sections, I will discuss sub-topics where I foresee substantial change coming under the Trump Administration. I will also comment on Trump's Administration's possible effect on corporate governance.

I. As a Criminal Defense Attorney

As a criminal defense attorney, I anticipate dramatic changes in the Department of Justice (and local U.S. Attorney's offices) and on the Supreme Court, though the impact on the latter will be more gradual.

A. Developments within the Department of Justice

I suspect that the Department of Justice will no longer brag, as it currently does, about being a "kinder, gentler" law enforcement agency. Candidate Trump promised a return to strict law and order, which generally implies

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longer prison sentences, an increase in mandatory minimum prison sentences, and fewer diversionary programs for non-violent offenders with mental health or drug problems. I fear that the efforts at criminal justice reform which have slowly been making progress—albeit snail-like in the past couple years—will come to an abrupt halt. Forget the record number of pardons granted by President Obama. I assume that most of the appointments to the United States Attorney posts will reflect the Trump-inspired demand for more "order" and less moderation in the criminal justice system. Certainly, Trump's choice for Attorney General, Jeff Sessions, augurs ill for any further criminal justice reform progress.

B. Developments within the Supreme Court

Developments in the Supreme Court are more complicated. First, I think we can assume that the nomination of Merrick Garland will either be withdrawn or will evaporate by January 2017. So, the first question is: who will fill the Scalia seat? From a criminal law perspective, this is considerably more interesting than might first be imagined. Justice Scalia was, to be sure, a very conservative Justice on issues involving affirmative action, marriage equality, abortion, voting rights litigation, and a host of other social issues. His replacement, we can assume, will mirror his jurisprudence on these issues. But in the field of criminal law, Justice Scalia was among the most "pro-defense" in many areas of the law, including the right to counsel,¹ the right to trial by jury,² the need for clarity and certainty in criminal laws,³ the necessity of a clear mens rea requirement in criminal statutes,⁴ the Confrontation Clause,⁵ and, perhaps most notably, in various aspects of the Fourth Amendment.⁶ He is far more protective of the Fourth Amendment right of privacy than Justice Breyer,⁷ for example; despite the conventional wisdom that Justice Breyer is a

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solid member of the "liberal" wing of the Court. Judge Merrick Garland, a Judge who spent considerable time in the Department of Justice and whose prior opinions on the appellate bench revealed no particular inclination to rein in prosecutorial or law enforcement over-reach, was probably going to be more in the mold of Justice Breyer, had he been confirmed.

Thus, if President-elect Trump were to choose a Supreme Court Justice whose jurisprudence truly mirrored Justice Scalia's, one could reasonably argue that the criminal defense bar (in my capacity only as criminal defense lawyer), might be pleased with the choice of a Justice who cared more about personal privacy than criminal law enforcement and "the ends justify the means" approach to criminal justice issues.

But Justice Scalia was one-of-a-kind. Most socially conservative Justices (such as Justice Thomas and Justice Alito, and often Chief Justice Roberts) are also pro-prosecution in their criminal...