Joe Pa's Putative "Federal Charges"

People who know me hopefully understand this one thing about me: I have a very, very low tolerance for people who form opinions without any information, people who just spout chatter and act as authorities on the subject with almost no knowledge of it.  Phrased more colloquially--I have a very low tolerance for people's bullshit.

This was a very, very common problem in law school.  To some degree, I think that the law requires this: attorneys are made to speak authoritatively on not only the law (which is usually static from case to case) but also the facts--which change with every case.  They basically have to convince people that they know more than they do by gaining enough knowledge to sound authoritative, but not actually be authoritative.  But this problem is not confined to law school and "big" issues--it's all the time.  Case in point: my dad's friend who insisted that, because there was no East Coast team in the World Series, no WS games would be on primetime.  Poppycock; I call shenanigans.  Anyway, I digress.

Well, this pet peeve recently surfaced in a discussion of the biggest story of the day: the "federal case against Joe Paterno."  As the rumors have rapidly mounted with every radio broadcast, tweet, and blog post, people are now throwing about a federal investigation involving Joe Paterno, Penn State, and/or Sandusky.  I got into several discussions that went something like this: "And I hear that the Feds may start investigating."  [Who "the Feds" are is always a mystery: the DOJ? Some Federal agency?]  That didn't sound right to me, that the Federal government (through whichever law enforcement entity) could just prosecute Sandusky, or Joe Paterno, or whomever for not calling the police.  So I asked, "What would be the Federal charge against Joe Paterno?"  And I never got an answer.  Or, I would get "Failing to inform!"  My first thought is "Federal government, state charge????  Wait a minute."  Maybe that wouldn't puzzle some, but it did me.  The reason is a brief recap of 6th grade civics, with some constitutional law mixed in.  Let me give it a shot.

In order for the Feds to prosecute a person, that person had to have broken a Federal law.  And when I start to consider the Penn State case, I start to wonder "Wait--which Federal law did Penn State/Joe Pa/Sandusky break?"  That question is an interesting one, because the Constitution does not allow the federal government to pass whatever legislation it would like.  If it did, the machinery of government would be a mess (imagine Federal government deciding to take over a particularly accident-prone intersection inn the city of Dallas; overnight, traffic tickets would become a "Federal offense."  It doesn't make sense for a massive national government, trying to solve national problems, to be involved in traffic tickets.)  Thus, the Constitution doesn't give the Federal government free rein to intrude on every area where a state or a municipality might legislate.    It emphatically does NOT give certain powers to the Federal government---for example, the States have the job of prosecuting regular, plain-vanilla crimes like murder, rape, arson, etc., and (for the most part) regulating school districts, enforcing traffic laws, and promulgating zoning ordinances.

But the Constitution DOES give the federal government a fairly broad set of powers.  Those powers consist of those specifically laid out in the Constitution (i.e., "making treaties with foreign nations, and with the Indian tribes" or "the power to coin money"), as well as certain powers that are "implied" by some section of the Constitution--for example, the power to regulate interstate commerce necessarily implies the power to regulate interstate transportation, the artery of interstate commerce (goods ship, etc.).  Incidentally, the "commerce power" is by far the very broadest of congressional powers; it has been interpreted very broadly by the Supreme Court to give the federal government the power to regulate almost any area that interstate commerce has affected. 

So perhaps Joe Pa/Penn State/Sandusky broke some law promulgated under the very broad Commerce Clause.  That is a sensible answer, but it is unlikely.  At one point, Congress sought to criminalize the possession of a gun in a school zone, and it passed the Gun-Free School Zone Act of 1990.  Congress claimed that the Commerce Clause gave them the authority to do that: they reasoned that guns in schools would eventually hurt a local economy, which would in turn hurt the national economy.  Seems like a stretch to me, and it did to the Supreme Court, as well.  In a case called United States v. Lopez, the Supreme Court ruled that Congress exceeded its constitutional authority when it passed the Gun Free School Zones Act of 1990 (recall that states have always regulated education, and that they have always regulated crime; Congress knew it might have been overstepping).  The Supreme Court found this causal argument way, way too attenuated--guns in schools really aren't an "economic" problem; thus, the Commerce Clause can't justify the law, and it's unconstitutional.  So the possibility that Congress has passed some law about mandatory reporting of child abuse--remember, an arena of State concern--is pretty unlikely.

Now, there ARE, aside from explicit grants of authority in the Constitution, ways that the Federal government can influence state decisions--dollars.  The Federal government can condition the acceptance of monetary grants on compliance with requirements.  The Supreme Court has placed certain restrictions on cash-for-compliance programs, but they're usually pretty logical.  For example, if you accept funds for campus security, your security force has to meet certain requirements; or if you receive money to maintain interstate highways, you have to maintain certain signage or enact DWI laws.

And here's where we can return to Joe Paterno: the Federal government can't prosecute him, or Penn State, or Jerry Sandusky for failing to report child abuse.  Remember, a "Federal charge" does not mean "same song, second verse, but this time fortissimo!"  It means that the Federal government is investigating the violation of a Federal law--NOT a state law--that necessarily had to have been enacted pursuant to some Constitutional authority.  The Federal government can't just choose to step in a prosecute a murder just because it's got a really juicy set of facts--some federal law had to have been violated.The Commonwealth of Pennsylvania COULD choose to prosecute all of these entities under Cons. Stat. Tit. 23, § 6311 et seq., which mandates that certain teachers and educators report these things to the police.  Again, this is a PENNSYLVANIA, and not a Federal statute--thus, the federal government CANNOT prosecute Joe Pa for failing to report.  Pennsylvania could; "the Feds" can't. 

So could a Federal investigation ensue?  Yes.  And, as a mater of fact, the Department of Education has already launched it.  The DOE is trying to determine whether Penn State broke a federal law called the Clery Act, a law passed in 1990 after a brutal muder/rape at Lehigh University.  The Clery Act is one of those cash-for-compliance pieces of legislation I talked about a couple paragraphs above--the Federal government gives States grants of money to improve their campus security, conditioned on that campus security force and the university on which they serve meeting certain requirements contained in the Act.  And the Clery Act mandates that such a university receiving federal funds MUST do three things: (1) maintain a crime log of crimes committed on campus within the last 60 days; (2) publish an annual Campus Security Report; and (3) provide students timely warnings of risks to their safety.  The DOE right now is investigating whether Penn State in fact did meet all three requirements with respect to Sandusky.

So, yes--there is a Federal investigation, but it is totally unrelated by Joe Pa's failure to contact the police.  But the DOE investigation, as I see it, faces some problems.  How, for example, do we define "crimes"?  Just prosecutions resulting in conviction?  Because Sandusky was only recently indicted.  He was investigated in 1999 by University Police, but he was never charged with anything.  Moreover, it doesn't seem that Sandusky necessarily posed a risk to students at Penn State.  He certainly posed a risk of a most reprehensible crime to children, but apparently not to Penn State students that would be informed by Campus Safety Report mandated by the Clery Act.  So, to me, it looks like the DOE has its work cut out for it.

The whole situation is a mess.  Initially, the facts saddened and disgusted me, particularly Joe Paterno's lack of fervor in disposing of his ex-assistant.  But I would like to hammer  home this point: "the Feds" will not prosecute Joe Pa for failing to call Happy Valley Police.

Herman Cain: later

So I obviously did not write my promised Herman Cain post.  I have several thoughts on the matter, among them his ability to adjust and respond; how he is actually in a position to continue to deny allegations (regardless of their veracity); and his own public image.

Other stuff happened, though (I got a job, bar results came in, traveling, etc.), and I moved onto another subject.  This WILL be updated, probably tomorrow, but I just wanted to check in with my loyal readers and say that my Herman Cain thoughts will be aired.

So, the $600 I paid to TAKE the exam apparently wasn't enough . . .

So I passed the bar and got sworn in on Monday.  And apparently the first thing I need to do as a new lawyer is PAY MORE MONEY.  Apparently, the $600 I paid to take the exam didn't quite cover the cost of me practicing law.  I have to shell out another $250 or so just to join the bar--even after taking the exam.

Of further annoyance is the stupid letter that the State Bar sent us.  There's only one letter that's mailed to new attorneys, but it apparently is way, way too simple to say "You owe 259.69.  Here's what it includes."  Instead, you have to read over arduous notations like "In 1995, during the 74th session, the Texas Legislature amended Subchapter H, Chapter 191 of the Tax Code requiring the Supreme Court to administer and collect the attorney occupation tax."  After a few lines, it tells us the amount ($200.00), but then takes another half a page to tell us it's pro-rated and that November-licensed attorneys (the ONLY ones who would be receiving this letter in teh first place) need only pay a fraction o f this.

I, even with my nascent lawyering skills, know to put the important stuff first in a document; "heavily front-end load the content," Professor Muller said to me.  The first sentence should tell me, "You need to write a check for $259.69."  THEN it should continue, "Here's how it breaks down."

Stupid lawyers . . .