Sometimes bad facts can make good law.
On April 18, federal agents went to arrest Eduardo Flores-Ruiz, who was wanted for illegal entry into the United States, at the courtroom of Judge Hannah C. Dugan in Milwaukee, where he was scheduled to appear on a state criminal charge.
After being notified that federal agents were in her courtroom to arrest Flores-Ruiz, Judge Dugan directed Flores-Ruiz and his attorney to leave the courtroom through a side door reserved for jurors, which had access to a private hallway leading to the public hallway outside the courtroom. Judge Dugan followed them through the door and then returned to the courtroom, where she continued the proceedings. Flores-Ruiz thereafter left the courthouse and, when confronted by federal agents, tried to flee. He did not succeed. See Criminal Complaint filed in Case No. 25-M-397 (SCD).
On Thursday, federal agents arrested Judge Dugan at the courthouse. She was taken before a federal magistrate and released. Later in the day, the FBI Director published a photo of Judge Dugan as she was being “perp walked” to the agent’s car.
The criminal complaint filed with the court accuses Judge Dugan of violating two federal statutes: obstruction of the administration of the law under 18 U.S.C. 1505 and harboring or concealing a person wanted for arrest under 18 U.S.C. 1071. Violating both statutes is punishable by imprisonment for up to five years.
18 U.S.C. 1505 makes it a crime for anyone to:
[C]orruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States
18 U.S.C. 1071 makes it a crime for anyone to:
Harbor[s] or conceal[s] any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person.
Even if the facts demonstrate that Judge Dugan intentionally assisted Flores-Ruiz to evade capture, the District Court for the Eastern District of Wisconsin and later the Seventh Circuit Court of Appeals will have to confront the very real question whether her conduct violated either of these statutes.
In doing so, the courts will consider principles of textualism and originalism. This articled, published this month in the Champion, the magazine of the National Association of Criminal Defense Lawyers, explains how these principles apply to statutory construction and how you can employ them in civil or criminal matters where there is a question of the application of a particular statute to an individual’s or a business’s conduct.
Published this month in the Champion
By Jon May
The Textualism Method of Statutory Construction
Use Textualist Analysis to Show That a Client’s Conduct Is Not a Crime, Position Arguments for Appeal, and Maximize Chances for Supreme Court Review
The U.S. Supreme Court’s decision in Dobbs 1 (overruling Roe v. Wade) not only threatened all reproductive rights but also other civil liberties that the Supreme Court had recognized since the mid-1950s.2 The same principles of originalism and textualism that threaten firmly established civil rights have also limited the reach of criminal statutes. While defense counsel may abhor the devil, it is in a client’s interest that counsel understand what principles of statutory and constitutional interpretation are available to demonstrate that a statute is unconstitutional on its face or as applied to the client’s conduct.
Defense lawyers are familiar with the cases discussed in this article. When they read the decisions, however, they probably focused on the holdings and not on the various approaches the justices took to interpreting statutes. Various rules of statutory construction inform these approaches; understanding these rules will put defense counsel parsecs ahead of the government in crafting a compelling legal arguement and convincing the court to see the purpose of the law as the defense team does.
1. Some Fundamental Principles of Statutory Construction
The principles of construction examined in this article do not constitute the universe of principles available.3 Let’s begin with a recent civil case.
In Bittner v. United States,4 the Supreme Court was asked to decide whether an individual who failed to file a report of his foreign bank accounts (FBAR) could be fined only $10,000 for each report he failed to file or $10,000 for each account that he failed to report on each form. This made a significant difference to Alexandru Bittner because, over five years, he failed to file the required FBAR pertaining to 272 foreign bank accounts. If the former rule applied, he owed the government only $50,000 ($10,000 for each year he failed to file a report); if the latter applied, $2.72 million.5 It is not difficult to guess which interpretation the government chose.
The court’s 5-4 opinion was not unusual. But the division between the judges was not the usual breakdown. Justice Gorsuch wrote the opinion, joined by Chief Justice Roberts, Associate Justices Alito and Kavanaugh (no surprises there) but also Ketanji Brown Jackson. Justice Barrett, Justice Thomas, Justice Sotomayor, and Justice Kagan dissented. This breakdown demonstrates that the difference in the analysis of the statute between the justices in the majority and in the dissent was not ideological; indeed, both sides employed the same tools in interpreting the statute.
Justice Gorsuch began by discussing the language used by two relevant statutory provisions, 31 U.S.C. §§ 5314 and 5321(a)(5)(A). The first statute re-quires the filing of reports providing information concerning a transaction with a foreign financial agency. The second imposes a $10,000 penalty for violating § 5314. Neither statute uses the word “account.”
By contrast, § 5321(a)(5)(C)(i)(I) increases the fine for a willful violation, which the statute defines as “a failure to report the existence for an account” and increases the penalty for a willful violation to either $100,000 or 50% of “the balance in an account at the time of the violation.” Unlike the provisions at issue, this portion of the statute uses the word “account” and ties the amount of the fine to money in an account at the time of the transaction.6
From this, Justice Gorsuch applied the rule of statutory construction, ex-pressio unius est exclusio alterius. This principle means that when Congress uses a term in one part of a statute but not another, a court can assume that Congress knew what it was doing and intended that there be a difference.7 From that principle, Justice Gorsuch found that since Congress expressly imposed penalties on a per-account basis for willful violations but not for non-willful violations, there could only be one $10,000 fine for the failure to file a report of transactions with foreign bank accounts in a given year, no matter how many such accounts were omitted.8
What does this say about how defense counsel should proceed in any attack on a statute? First, focus on the language used. Do the words clearly apply to the client’s conduct; are they ambiguous, or, as in Bittner, are they implied? Then, look to see whether other provisions in the same or neighboring statutes use different language and what that implies about the meaning of the words used in the law defense counsel is attacking.
How does this apply to the types of cases defense lawyers handle on a daily basis? Those cases will be discussed later in this article. Bittner is just a springboard to understanding how the court has construed criminal statutes and constitutional provisions.
Justice Gorsuch then moved on to “contextual clues.” He cited the government’s “warnings, fact sheets, and instructions” concerning the Bank Secrecy Act (BSA), where the government told the public that the failure to file an FBAR may be subject to a penalty not to exceed $10,000. “Nowhere in these materials did the government announce its current theory that a single deficient or untimely report can give rise to multiple violations....”9
Justice Gorsuch conceded that these statements by the Department of the Treasury do not control the court’s analysis. However, he added that the court “has long said that courts may consider the consistency of an agency’s views when we weigh the persuasiveness of any interpretation it presents in court.”10
This same principle had been applied earlier in United States v. Pennsylvania Industrial Chemical Corp, a decision that was not discussed in Bittner.11 Pennsylvania Industrial is not a statutory construction decision. The petitioner in Pennsylvania Industrial did not contend that the statute was ambiguous. Instead, the petitioner argued that it was entitled to rely on how the Army Corp of Engineers had construed and applied a statute as an affirmative defense to a claim that the company had violated the law. The defendant was convicted of violating the Rivers and Harbors Act of 1899 by discharging industrial pollutants into a navigable river. The Supreme Court held that the conviction should be reversed because the trial court excluded evidence that the Army Corps of Engineers consistently limited its regulations to obstructions to navigation and thus may have deprived the defendant of fair warning as to what conduct the government intended to criminalize.12
Although courts are no longer permitted to defer to an agency’s interpretation of its own rules under the decision in Loper Bright Enterprises (overturning Chevron deference),13 courts and defendants can, as in Pennsylvania Industrial, consider an agency’s interpretation of a statute as an affirmative defense for the jury to consider when deciding a case. Jumping ahead, both cases come together when they discuss a corollary to reliance, the requirement under due process of law that a statute provide adequate notice of what it proscribes.
Next, Justice Gorsuch turns to an argument that reflects, but does not mention, another principle of statutory construction: a court should not adhere to a literal reading of a statute that leads to an absurd result.14 This is the reason Justice Gorsuch finds the government’s interpretation of the statute absurd:
Consider someone who has a $10 million balance in a single account and nonwillfully fails to report that account. Everyone agrees he is subject to a single penalty of $10,000. Yet under the government’s theory, another person engaging in the same nonwillful conduct concerning a dozen foreign accounts with an aggregate balance of $10,001 would be subject to a penalty of $120,000.15
This illustration demonstrates that the government’s interpretation flies in the face of Congress’s statement of purpose when this statute was enacted:
Congress has declared that the BSA’s “purpose” is “to require” certain “reports” or “records” that may assist the government in everything from criminal and tax to intelligence and counterintelligence investigations. 31 U.S.C. § 5311.16
Finally, Justice Gorsuch turns to due process. First, he employs a negative analysis. “The relevant provisions of the BSA nowhere discuss per-account penalties for nonwillful violations.” Then he refers to his previous finding that government guidance on the BSA only alerted the public to per-report, not per-account, penalties. In such circumstances, the court should apply the rule of lenity: when the law is ambiguous, it should be interpreted in favor of the defendant. This rule is intended to implement the rights granted by due process; that is, fair warning must be given so that the world knows what will happen if a certain line is passed.17
In a parting shot to the dissent, Justice Gorsuch writes, “In these circumstances, the rule of lenity, not to mention a dose of common sense, favors a strict construction.”18
Under the doctrine of originalism, one must first look at the plain meaning of the words used. One cannot consider the drafter’s intent, at the Constitutional Convention or on a congressional committee. However, in determining the plain meaning, one looks at how those words were understood at the time of the enactment, either in the past or in the present. It is not permissible to consider legislative reports or the statements of those involved in drafting a provision or who voted for it because it is impossible to know what each legislator was thinking. A legislature is a collective body and does not have a mind, and legislation is usually the result of some compromise.19
If the most reasonable interpretation of the plain meaning applies to the defendant’s conduct, the analysis is over, but if arguably the words apply to a narrower range of conduct, then one can apply various principles to determine how the statute should be interpreted. These principles need not be applied in a particular order, and not all will apply in a particular case.
1. How do the applicable provisions of a statutory scheme work together? In Bittner, two provisions applied — § 5314 delineated duties under the Bank Secrecy Act and § 5321 detailed the penalties for failing to follow the law.
2. Next, compare the plain language of the relevant provisions and see whether the words used are more consistent with one party’s interpretation of the law than the other’s. Consider whether different words would have been used if it were de-signed to effectuate a certain result.
3. Does a different section of the statute use different language, and does that language support an interpretation contrary to the one the government urges? If so, then under the principle of expressio unius est exclusio alterius, defense counsel can argue that had Congress intended the operative provision to be interpreted the way the government wanted the court to, Congress knew how to do that and did not.
4. Next, apply “contextual” clues.
a. Did Congress provide a statement of intent when it enacted the statute? This is different from resorting to legislative history because it reflects the intent of the entire legislative body, not individual members who may have differing interpretations of what the statute means.
b. Did the agency responsible for implementing the statute issue “warnings, fact sheets, and instructions” that are consistent with defense counsel’s interpretation of the statute? This is different from Chevron deference (which the Court has now repudiated); rather, it goes to the reasonableness of a defendant’s reliance upon the government’s own interpretation of a provision in guiding the defendant’s own actions.
c. Does the government’s reading of the statute lead to absurd results? It defies common sense for a person to owe a $50,000 fine if the person fails to make a single report listing five accounts, each containing $20,000 for a total of $100,000, but only $10,000 if the person makes a single report of one account containing $1,000,000.
[Reading this case allows one to see how much the interpretation of a statute can turn upon a judge’s view of policy (or values). In response to this point, the dissent makes an equally persuasive argument that Congress may have believed someone hiding five accounts is of more interest to the government than an individual just using one account. The former is more likely to reflect money laundering, and the latter tax evasion.]
d. Finally, argue that the rule of lenity applies because the statute does not expressly give notice that the defendant’s conduct is a crime.
Let’s look at how this approach to constitutional and statutory construction has been applied to various criminal decisions. First, let’s focus on the Supreme Court’s interpretation of the mail and wire fraud statutes since 1987.
2. How These Principles Have Been Employed in the Evolution of Fraud Cases
On first reading, the mail fraud statute seems clear:
Whoever, having devised or in-tending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service.
18 U.S.C.A. § 1341
On its face, the statute defines two independent ways of committing fraud: (1) the defendant created a scheme or artifice to defraud; or (2) made false or fraudulent pretenses, representations, or promises to obtain money or property.
For many years, the courts held that one could be convicted on either the first or the second basis as long as, in either case, the defendant made use of the mail (and later any common carrier like FedEx or UPS). For the most part, the government used the first clause in prosecutions when a defendant violated a fiduciary duty to the defendant’s employer or to the citizens of a state. For example, in United States v. George,20 the government prosecuted an employee who arranged for his employer to purchase cabinets from a particular manufacturer in exchange for a kickback. He was convicted of devising a scheme to defraud his employer of its right to “his honest and faithful services.” In United States v. Isaacs,21 a governor who accepted bribes in return for fixing particular racing dates for a horse racing enterprise was convicted of devising a scheme to defraud the people of their right to his “honest and faithful services as governor.”
These kinds of prosecutions multi-plied until the Supreme Court held that the word “or” actually meant “and.” In McNally v. United States,22 the defendants were convicted of mail fraud for devising a scheme to defraud the citizens and government of Kentucky of their right to have the state’s affairs conducted honestly. The government did not argue that the defendants sought or obtained money or property, just that they had engaged in a scheme or artifice to deprive the citizens of their honest services.
In reversing their convictions, the Court addressed squarely the contention that “[b]ecause the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property.” The Court acknowledged that this interpretation of the law is the one “that has been taken by each of the courts of appeals that has addressed the issue.”23
While that is the standard construction of the words, it is trumped by the longstanding position of the Court that “the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’”24
What does one learn from McNally? Today, one might argue that there was a debate between traditional rules of statutory construction and the historical meaning of words. Or one might see this decision as reflecting the Court’s hostility to criminal statutes that go beyond protecting property rights. The court also delved into legislative history of the statute, which it contends supports its interpretation.
But most importantly, McNally teaches that the Court will interpret the law to reflect its own values, and to pre-vail in the Supreme Court one needs to use the various rules of interpretation to play to those values.
The other fraud case from 1987, Carpenter v. United States, reflects this. R. Foster Winans, a reporter for the Wall Street Journal, wrote a daily column, “Heard on the Street,” about stocks. After the paper published his stories, the share price of whatever stock he discussed in his column would trade up or down based on whether he had given it a positive or negative review. Although some of his sources were insiders, such as CEOs, the in-formation he relied on was not secret. Winans got into trouble when he shared information from his columns before it was published with others who would trade on that information and share the profits with Winans. Winans was aided by his roommate David Carpenter in this scheme. They all made a lot of money. Although the Wall Street Journal did not lose any money or property, the government argued that Carpenter violated his fiduciary duty to the company. Carpenter argued that this was an intangible right that was not covered by the mail fraud statute.25
The Supreme Court said that this right may be intangible, but it was nevertheless a property right, so the mail fraud statute was violated because the scheme or artifice to defraud involved a right to property, that is, confidential information owned by the Wall Street Journal.
Once again, the Court relied upon a long line of decisions that had held that confidential information is a property right.
So, when is a property right a property right, and when is it not a property right? That question was addressed by Justice Ginsburg in the Court’s unanimous decision in Cleveland v. United States.26 In that case, Carl Cleveland was prosecuted for making false statements when applying to the Louisiana State Police for permission to operate video poker machines. The Court held that permits or licenses do not qualify as “property” within § 1341’s compass. The Court arrived at its decision by finding that for purposes of the mail fraud statute, the thing obtained must be property in the hands of the victim. State and municipal licenses are not “property” for purposes of § 1341 and are only property in the hands of the official licensor.
The Court began by determining what kind of law the federal government was trying to protect. It found that the Louisiana provision was regulatory. This was a critical finding because if mail fraud could be used to prosecute misstatements made to obtain a state license, then it could be applied to a mis- statement made to get all kinds of licenses “including drivers’ licenses, medical licenses, and fishing and hunting licens-es.”27 Appellate lawyers call this kind of argument “a parade of horribles.”
Second, to expand federal power over such purely state activities, Congress must explicitly state that intent. This argument is a powerful one to make because Congress often fails to be explicit. “‘[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance’ in the prosecution of crimes.’”28 The overcriminalization of federal law is an argument to which the Supreme Court is increasingly receptive.
Third, a common doctrine applied by the Supreme Court in interpreting federal criminal statutes is the “rule of lenity.” In this case, the Court said, to the extent that the word “property” is ambiguous, “we have instructed that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’”29 Thus, “[i]n deciding what is ‘property’ under § 1341, we think ‘it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’”30
3. How the Supreme Court Employed These Principles to Other Criminal Statutes
The Supreme Court’s 2024 decision in Pulsifer v. United States31 informs arguments that could be made regarding other statutes. Mark Pulsifer faced a mandatory minimum sentence of 15 years in prison after pleading guilty to distributing at least 50 grams of methamphetamine. The question before the Supreme Court was whether he was entitled to a sentence less than the mandatory minimum after enactment of a new statute that made it possible for more defendants to be eligible for the “safety valve.” That statute is 18 U.S.C. § 3553(f). Pursuant to that statute, a defendant is eligible to be sentenced under a mandatory minimum, subject to various disqualifying conditions described in sections 1–4.
Section (f)(1), the provision before the Court, addresses disqualifications based on the defendant’s criminal history. Sections (f)(2) to (f)(4) address those cases where the safety valve would not apply at all, such as:
(f)(2) the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon;
(f)(3) the offense resulted in death or serious bodily injury to any person;
(f)(4) the defendant was an organizer, leader, manager, or supervisor of others in the of defense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act.
(emphasis added).
If the defendant’s offense did not involve any of the circumstances described in (f)(2) through (f)(4), he would still be ineligible based upon his criminal history under (f)(1) if he had more than four criminal history points, a 3-point offense, and a 2-point violent offense.
Pulsiver had two 3-point offenses, but he did not have a 2-point crime of violence. Pulsiver argued that he qualified for the safety valve because a defendant was only ineligible if all three conditions applied. Not so, said the government: The statute must be read as if the word “and” meant “or,” and the Supreme Court agreed.
Justice Kagan wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Gorsuch wrote the dissent, joined by Justices Sotomayor and Jackson. Justice Kagan stated that both sides presented equally plausible textual interpretations of the statute. Justice Gorsuch said not at all; the ma-jority’s interpretation was absurd.
Justice Kagan said that popular belief notwithstanding, there were situations when the word “and” is not being used as a conjunction. Consider Article III, § 2 of the Constitution, which provides that “[t]he judicial Power shall extend to all Cases ... arising under this Constitution, the Laws of the United States, and Treaties.” No one would contend that a court’s jurisdiction is limited to a case where all these qualifications apply. The statute means that the court can adjudicate any case that involves the Constitution or the Laws of the United States, or a treaty. This is understood from the context and is not ambiguous. Another example from the Constitution is Article I, § 8, cl. 3, which gives Congress the authority to “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Plainly, Congress is not limited to enacting statutes that only apply when all three of these conditions are met. For a nonconstitutional example, she cited a hypothetical posed to Pulsiver’s attorney during oral argument: a hospital’s directive “not to eat, drink, and smoke” for the 12 hours preceding a surgery. “Even Pulsifer’s counsel agreed that he would not feel free to have a steak and martini so long as he abstained from tobacco.”
To explain why grammar does not answer the question, only context does, Justice Kagan asks us to consider two examples, one previously referenced. In the case of a prohibition on “drinking and driving,” people know that this means do not do both because only both are dangerous if done together. In the case of a prohibition on “eating and drinking” before surgery, people know that either is dangerous alone.32
Since grammar fails to settle the question, we must examine the context of the law. Here, Pulsiver’s argument that only the combination of conditions disqualifies one from being eligible for the safety valve creates two statutory difficulties. The first condition would become superfluous because if the defendant suffers from conditions 2 and 3, i.e., having a 3-point offense and a 2-point crime of violence, he will always satisfy condition 1 because his total criminal history exceeds 4 points. Second, his interpretation would lead to situations in which defendants with more serious criminal histories would be eligible, whereas defendants with less severe criminal histories would not. A defendant could have five 3-point crimes of violent offenses for a criminal history of 15 and be eligible for the safety valve, but a defendant who has five criminal history points from one 3-point offense and one 2-point violent felony offense would not. Justice Kagan asks, “Which of the two defendants is the more serious prior offender? The latter of course: His record exhibits greater recidivism, lengthier sentences, and more violence.”33
Now, let’s look at Justice Gorsuch’s response to this analysis. Justice Gorsuch explains in general how the Guidelines work and then moves on to the subsequent objections to the mandatory minimum provisions, which failed to distinguish between defendants whose criminal record did not demonstrate an ongoing threat to society and those whose record of prior convictions demonstrated a need to incapacitate them for a long period of time. This led to the enactment of the safety valve, which gave the courts the authority to impose a sentence under the mandatory minimum. However, the safety valve proved to be too limited, and that eventually resulted in the enactment of the First Step Act,34 which significantly increased the number of individuals eligible for a sentence less than the mandatory minimum.35
It is against this backdrop that Gorsuch contested Kagan’s thesis. According to Gorsuch, had Congress meant “and” to mean “or,” Congress had a simple solution, it could have just used the word or.36 More significantly, Congress did use the word “or” in paragraphs (f) (2), (f)(3), and (f)(4), which dealt with eligibility based on the crime for which the defendant was convicted.
Regarding the application of grammar, absent some suggestion that a term bears a specialized meaning, the Court’s duty is to interpret Congress’s work as an ordinary reader would. The rules of grammar say that “and” is a conjunction. The function of a conjunction is to connect items. “And” is an additive con-junction, which means that when “and” performs that role, it means “together with,” “along with,” “in addition to,” or “as well as.” When “and” connects a list of conditional statements that means it functions like the word “unless.”37 This further supports Justice Gorsuch’s conclusion that “and” cannot be interpreted to mean “or.”
According to Justice Gorsuch, once a court determines “the most natural sense of the law’s terms,” the analysis is over.38
In response to the majority’s contention that Pulsiver’s argument would make condition one (more than four criminal history points) superfluous since if both conditions two (a 3-point offense) added to condition three (a 2-point violent felony) always exceed 4 points, Justice Gorsuch points out that not every 3-point offense counts in determining a defendant’s criminal history. Points associated with hitchhiking, public intoxication, and fish and game offenses, for example (§ 4A1.2(c)(2)), are never counted. Nor are points associated with sentences imposed by a court-martial, a foreign court, or a tribal court.
Having knocked out the majority’s superfluity argument, Justice Gorsuch says, let’s assume the statute is ambiguous. That does not mean that the Court can produce some policy reason to support one interpretation over another. “[W]e have neither the institutional competence nor the constitutional mandate to assess the relative merits of different approaches Congress could have taken.” Instead, the Court is required to apply the rule of lenity and adopt the interpretation most favorable to the defendant.39
Pulsiver provides a wealth of approaches to statutory construction that defense counsel can draw upon.
1. Policy arguments do make a difference — maybe not at the district or circuit levels, but certainly before the Supreme Court. Therefore, if lawyers are positioning an argument for future consideration by the Court, they should not omit to demonstrate why the argument best effectuates the purpose of the statute. Pulsiver was a battle between competing policy positions. The majority was concerned that Pulsiver’s position would cause more serious criminals to escape punishment. The dissent was concerned that the government’s position would undermine the statute’s purpose to greatly increase the number of persons released from prison.
2. Brush up on grammar. Analyzing statutory construction is a way to have a case thrown out in the district court. Compared to understanding DNA evidence or the Sentencing Guidelines, the principles of grammar are easy.
3. Two principles of statutory construction that the justices addressed at length in the opinion but did not play a major role in the outcome were the doctrines of lenity and absurdity.
A. Lenity “requires courts to interpret ambiguous ‘penal laws,’ including those concerning sentencing, in favor of liberty, not punishment.” It comes up frequently in cases when courts are called upon to construe a new statute or the application of a statute to unusual circumstances.
i. “Courts construe ambiguous penal laws with lenity because a free nation operates against a background presumption of individual liberty.”
ii. “[O]nly the people’s elected representatives, not their judges, are vested with the power to define a crime, and ordain its punishment.”
iii. “Lenity protects vital due process interests, as well, by ensuring individuals fair notice of the consequences of their actions.”
iv. It guards “against, the possibility that judges might condemn unpopular individuals to punishment on the strength of their own views about common sense, good public policy, or no more than a guess as to what Congress intended.”
Justice Gorsuch calls these “weighty constitutional values.”40
The absurdity doctrine is an incredibly useful, but rarely used, principle that may be available in an argument that a statute is unconstitutional as applied:
When a statute produces a truly irrational result, we have a doctrine to deal with the dilemma: absurdity. In narrow circumstances, a simple and “eas[ily]” fixed statutory error that “no reasonable person could intend” may be amenable to judicial correction under this Court’s traditional absurdity doctrine.41
Because attorneys rarely raise this doctrine, it has rarely been applied by the courts. However, unlike a rational basis argument, which is almost impossible to satisfy in a criminal context, it is not necessary to demonstrate that there is no circumstance where the statute rationally applies. All defense counsel needs to show is that the statute cannot rationally be applied to the client’s conduct.
4. Context Is the New History
Consider how these principles of statutory construction could impact a decision in a case presently before the Supreme Court. In Thompson v. United States,42 the Court is asked to decide whether a statement that is misleading, but not false, violates 18 U.S.C. § 1014, which criminalizes making “any false statement upon any [loan] application ... for the purpose of influencing in any way the action of [virtually every kind of lending institution one could think of, other than the Mafia].
As in Pulsiver, Thompson advances an argument based on grammar, while the government contends that the language must be viewed in context.
In his petition for certiorari, Patrick Thompson argued:
1. “[S]tatutory interpretation must begin with, and ultimately heed, what a statute actually says.” Groff v. DeJoy, 600 U.S. 447, 468 (2023) (brackets and internal quotation marks omitted). The text of section 1014 could not be any clearer: It punishes a person who “knowingly makes any false statement,” 18 U.S.C. § 1014, not a person who makes a true but misleading statement....43
2. After reviewing various statutes which only use the word “false” or only the word “misleading,” Thompson argued:
“Congress knows how to prohibit misleading statements, fraudulent statements, and omissions when it wants to. Congress specifically prohibits them by name. In section 1014, by contrast, Congress prohibited only false statements. The obvious inference is that section 1014 does not criminalize the making of statements that are merely misleading or fraudulent....”44
3. To the extent that some courts have defined false statements as including misleading statements, they have done so by assessing the materiality of the statement. But that is inconsistent with the decision of the Supreme Court in United Statesv. Well, which held that materiality is not an element of section 1014.45
4. Finally, Thompson invokes the rule of lenity:
Before subjecting someone to such substantial criminal penalties, “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Williams, 458 U.S. at 290 (internal quotation marks omitted).46
In response to Thompson’s petition, the government argues that the circuit courts were not in conflict and that even if they were, Thompson was not entitled to have his case reviewed by the Court because his statements were not just misleading, they were actually false.47
The evidence against Thompson is not detailed here because the facts are not important for the purposes of this article. After reading the facts described in the Seventh Circuit’s opinion, it is certainly possible for one to say that Thompson’s statements were not merely misleading but were actually false. Still, this is another case that could go either way.
Consider the rest of the government’s argument:
1. The government disputes Thompson’s argument as to the meaning of false.
“In ordinary usage, the word ‘false’ has never been limited by notions of ‘technical’ or ‘literal’ veracity. See, e.g., Webster’s Third New International Dictionary 819 (1981) (defining ‘false’ as ‘not true,’ ‘deceitful,’ ‘tending to mislead’)” (capitalization and emphasis omitted).48
2. The government then moves on to a policy argument.
The statute “criminalizes false statements made ‘for the purpose of influencing in any way the action of’ the lenders and other financial institutions listed in the statute. 18 U.S.C. 1014. It would be anomalous to read a law designed to protect lenders from being ‘influenc[ed] in any way’ as excluding misleading statements. Ibid.”49
The government rejects Thompson’s argument that Congress purposely chose to use the word false in some statutes while it used misleading, demonstrating that these words are exclusive. “The other provisions were enacted at various times, some of them decades apart.”50
“Accordingly, the kind of inference that can be drawn when Congress includes ‘particular language in one section of a statute but omit[s] it in another section of the same Act,’ Johnson v. United States, 559 U.S. 133, 143 (2010) (citation omitted), does not apply here.”51 (emphasis in original)
Finally, the government engaged in a close analysis of the cases that petitioner relies upon and distinguished each on the grounds that each did not actually hold that a false statement could never include a misleading statement.52
Mark Allenbaugh and Alan Ellis published an article on Thompson in Law360. They believe that the Supreme Court will rule in favor of Thompson, relying on recent Supreme Court cases reigning in broad theories of liability.
I am not convinced. Based on how the Court ruled in Pulsiver, I believe that it is more likely that the Court is going to focus on the language “for the purpose of influencing in any way the action of” and find that in that context, a misleading statement may be as damaging as a false statement and that including such statements within the meaning of false best serves the purpose of the statute. The creativity of criminal minds knows no bounds, and permitting misleading statements to obtain loans is just an invitation for more criminals to walk through that door. But I agree with their larger point, that at this time, with this Court, the opportunities for creative advocacy are at a high point. So how do you take advantage of this brave new world?
5. Statutory Deconstruction: An Approach to Attacking Statutes That Purport to Make a Client’s Lawful Conduct, Unlawful
When I come into a case, my default assumption is that if the facts alleged are true, my client violated the offenses charged. My goal is to prove to myself that my assumption is wrong. Likely, however, I am not going to find a case directly on point holding that the particular offense is infirm for some reason. At best, I will find instances where courts held that under the facts in that particular case, the defendant did not violate the law. Certainly, in most cases, one can do no more than make the best argument one can. At times, defense counsel feels that the application of a law to what the client is accused of is offensive. There may be some basic unfairness to it. Defense counsel may think that Congress surely did not intend for this statute to apply to what the client is alleged to have done. The statute may even operate in a way that effectively discriminates against a definable group while treating a favored group differently. The most obvious example is the crack cocaine - powder cocaine disparity. While there may have been a basis to believe that crack cocaine was more dangerous than powder cocaine when Congress enacted the mandatory minimum statute, it quickly became known that this was not the case. The failure to correct that disparity was simply the result of racism.
Here is another example. Deferred prosecution agreements were created when the Speedy Trial Act was enacted in the early 1970s. It was intended as a means of diverting low-level offenders out of the system. But by the 80s, most low-level offenders were subject to mandatory minimum sentences, and DPAs fell out of use. But beginning in the 1990s and accelerating in the 2000s, the Department of Justice began handing out DPAs to some of the largest corporations, believing that criminal fines and forfeitures were a way to fight corporate crime without risking companies imploding as did Enron and Arthur Anderson or being debarred from government contracts.
When a lawyer concludes that the prosecution of a client is not right and not fair, the lawyer’s research should begin at the beginning, when Congress enacted the statute. Although legislative history is disfavored in this era of textualism, it is nevertheless essential to counsel’s understanding of the law. Also, the Supreme Court distinguishes between legislative history and statutory history.
These form part of the context of the statute. And (unlike legislative history) can properly be presumed to have been before all the members of the legislature when they voted. So a change in the language of a prior statute presumably connotes a change in meaning.53
As seen in Pulsiver and with the Seventh Circuit’s decision in Thompson, while the Supreme Court is hostile to arguments based on “policy,” it is very receptive to arguments based on “context.”
Once defense lawyers have a context to argue to a court, they can use the various principles of statutory construction to support it.
6. Weapons for the Defense
This article is not a defense of the textualism or originalism mode of statutory construction. Many people, professional and lay alike, believe these doctrines have been a pox on the nation that has undermined and will continue to undermine civil liberties and advance the interest of the wealthy and big business. Some, like Professor Dorfman, argue that textualism and originalism are rationales designed to hide aggressive judicial activism by judges who have demonstrated a willingness to misinterpret history to achieve their ideological ends. In 2024, Justice Breyer published Reading the Constitution: Why I Chose Pragmatism, Not Textualism. His book demolishes the arguments in favor of textualism and originalism and should be considered “required reading” for anyone concerned with the future of the law.54
Regardless of one’s opinion of these twin doctrines and the conservative wing of the Court, these principles have often tipped the balance in favor of the accused. Use these weapons and go forth and slay the dragon.
© 2025, National Association of Criminal Defense Lawyers. All rights reserved.
Notes
1. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
2. Jon May, Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, but the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans, Verdict, June 27, 2022; https:// verdict.justia.com/2022/06/27/justice-alitos-opinion-on-abortion-not-just-the-end-of-reproductive-rights-but-the-downfall-of -fundamental-civil-liberties-guaranteed-by-the-fourth-amendment-to-all-americans.
3. See Antonin Scalia & Bryan A. Gardner, Reading Law: The Interpretation Of Legal Texts (2012). The authors discuss 70 principles courts employ in construing statutes. No one should make a statutory construction argument without first reviewing their treatise.
4. Bittner v. United States, 598 U.S. 85, 143 S. Ct 713 (2023).
5. Id.
6. Id. at 94.
7. Id.
8. Id.
9. Id. at 97.
10. Id.
11. 411 U.S. 655 (1973).
12. Id. at 673-74.
13. Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).
14. Antonin Scalia & Bryan A. Gardner, at 234.
15. Bittner, supra, 598 U.S. at 100.
16. Id. at 98.
17. Id. at 102.
18. Id. at 103.
19. See Scalia & Garner, at 369 et seq.
20. 477 F.2d 508, 513 (7th Cir. 1973).
21. 493 F.2d 1124, 1150 (7th Cir. 1974).
22. 483 US. 350 (1987).
23. Id. at 359.
24. Id. at 458-59.
25. 484 U.S. 19, 108 S. Ct. 316 (1987).
26. Cleveland v. United States, 531 U.S. 12, 121 S. Ct. 365 (2000).
27. Id. at 22.
28. Id. at 25. See Jones v. United States, 529 U.S. 848, 858, 120 S. Ct. 1904 (2000) (quoting United States v. Bass, 404 U.S. 336, 349, 92 S. Ct. 515 (1971)).
29. Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056 (1971).
30. Cleveland, 121 S. Ct. at 374 (quoting united States v. universal C.I.T. Credit Corp., 344 u.S. 218, 222, 73 S. Ct. 227 (1952)).
31. Pulsifer v. United States, 601 U.S. 124, 144 S. Ct. 718 (2024).
32. Id. at 141.
33. Id. at 147.
34. First Step Act of 2018, Pub. L. No. 115-391 (2018), https://www.govinfo.gov/ app/details/PLAW-115publ391.
35. Id. at 157-160.
36. Id. at 162.
37. Id. at 161.
38. Id. at 164.
39. Id. at 144.
40. Id. at 184-85.
41. Id. at 180.
42. No: 23-1095.
43. Cert. pet. at 13.
44. Id. at 15.
45. Id. at 12.
46. Id. at 18.
47. Response at 5-6.
48. Id. at 6.
49. Id. at 7.
50. Id. at 9.
51. Id.
52. Id. at 11-13.
53. Scalia & Gardner, supra, at 256.
54. Stephen Breyer, Reading The Constitution: Why I Chose Pragmatism, Not Textualism (2024).