    [House Hearing, 119 Congress]
    [From the U.S. Government Publishing Office]

                             CRIMINALIZING AMERICA:
                      THE GROWTH OF FEDERAL OFFENSES AND
                              REGULATORY OVERREACH

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME AND FEDERAL
                            GOVERNMENT SURVEILLANCE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                             WEDNESDAY, MAY 7, 2025
                                   __________

                               Serial No. 119-20
                                   __________

             Printed for the use of the Committee on the Judiciary

                   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov
                                    ______

                       U.S. GOVERNMENT PUBLISHING OFFICE

    60-319                     WASHINGTON : 2025

                           COMMITTEE ON THE JUDICIARY

                            JIM JORDAN, Ohio, Chair

    DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking
    ANDY BIGGS, Arizona                    Member
    TOM McCLINTOCK, California           JERROLD NADLER, New York
    THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California
    THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee
    CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin            Georgia
    BEN CLINE, Virginia                  ERIC SWALWELL, California
    LANCE GOODEN, Texas                  TED LIEU, California
    JEFFERSON VAN DREW, New Jersey       PRAMILA JAYAPAL, Washington
    TROY E. NEHLS, Texas                 J. LUIS CORREA, California
    BARRY MOORE, Alabama                 MARY GAY SCANLON, Pennsylvania
    KEVIN KILEY, California              JOE NEGUSE, Colorado
    HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia
    LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina
    WESLEY HUNT, Texas                   BECCA BALINT, Vermont
    RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois
    GLENN GROTHMAN, Wisconsin            SYDNEY KAMLAGER-DOVE, California
    BRAD KNOTT, North Carolina           JARED MOSKOWITZ, Florida
    MARK HARRIS, North Carolina          DANIEL S. GOLDMAN, New York
    ROBERT F. ONDER, Jr., Missouri       JASMINE CROCKETT, Texas
    DEREK SCHMIDT, Kansas
    BRANDON GILL, Texas
    MICHAEL BAUMGARTNER, Washington

                                     ------

                       SUBCOMMITTEE ON CRIME AND FEDERAL
                            GOVERNMENT SURVEILLANCE

                           ANDY BIGGS, Arizona, Chair

    TOM TIFFANY, Wisconsin               LUCY McBATH, Georgia, Ranking
    TROY NEHLS, Texas                      Member
    BARRY MOORE, Alabama                 JARED MOSKOWITZ, Florida
    KEVIN KILEY, California              DAN GOLDMAN, New York
    LAUREL LEE, Florida                  STEVE COHEN, Tennessee
    BRAD KNOTT, North Carolina           ERIC SWALWELL, California

                   CHRISTOPHER HIXON, Majority Staff Director
                      JULIE TAGEN, Minority Staff Director

                                C O N T E N T S

                                  ----------

                             Wednesday, May 7, 2025

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Andy Biggs, Chair of the Subcommittee on Crime and
      Federal Government Surveillance from the State of Arizona......     1
    The Honorable Lucy McBath, Ranking Member of the Subcommittee on
      Crime and Federal Government Surveillance from the State of
      Georgia........................................................     3
    The Honorable Jamie Raskin, Ranking Member of the Committee on
      the Judiciary from the State of Maryland.......................     5

                                   WITNESSES

    Michael Fox, Legal Fellow, Project on Criminal Justice, CATO
      Institute
      Oral Testimony.................................................     7
      Prepared Testimony.............................................    10
    GianCarlo Canaparo, Senior Legal Fellow, The Heritage Foundation
      Oral Testimony.................................................    13
      Prepared Testimony.............................................    15
    Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public
      Interest Law, George Washington University Law School
      Oral Testimony.................................................    22
      Prepared Testimony.............................................    24
    Brett Tolman, Executive Director, Right on Crime
      Oral Testimony.................................................    30
      Prepared Testimony.............................................    32

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    All materials submitted by the Subcommittee on Crime and Federal
      Government Surveillance, for the record........................    56

    A statement from the National Association of Criminal Defense
      Lawyers, May 7, 2025, submitted by the Honorable Lucy McBath,
      Ranking Member of the Subcommittee on Crime and Federal
      Government Surveillance from the State of Georgia, for the
      record
    A bulletin entitled, ``Federal Justice Statistics, 2023,'' Mar.
      2025, U.S. Department of Justice, submitted by the Honorable
      Jamie Raskin, Ranking Member of the Committee on the Judiciary
      from the State of Maryland, for the record

                             CRIMINALIZING AMERICA:
                       THE GROWTH OF FEDERAL OFFENSES AND
                              REGULATORY OVERREACH

                                  ----------

                             Wednesday, May 7, 2025

                            House of Representatives

                   Subcommittee on Crime and Federal Government
                                  Surveillance

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to notice, at 2 p.m., in
    Room 2141, Rayburn House Office Building, the Hon. Andy Biggs
    [Chair of the Subcommittee] presiding.
        Members present: Representatives Biggs, Jordan, Kiley, Lee,
    Knott, McBath, Raskin, Goldman, and Cohen.
        Mr. Biggs. The Subcommittee will come to order.
        Without objection, the Chair is authorized to declare a
    recess.
        We welcome you all to the hearing today. Please stand as
    the gentleman from North Carolina leads us in the Pledge of
    Allegiance.
        All. I pledge allegiance to the Flag of the United States
    of America, and to the Republic for which it stands, one
    Nation, under God, indivisible, with liberty and justice for
    all.
        Mr. Biggs. I thank everyone for coming. I am told others
    are on their way. I hope that is true.
        I recognize myself now for an opening statement.
        I thank the Members who are here and those who will be
    coming. I thank our witnesses today. This is really a great
    panel we have. A lot of talent and expertise, and I am grateful
    that you would take time to be with us today.
        Today's hearing is titled ``Criminalizing America: The
    Growth of Federal Offenses and Regulatory Overreach.'' We could
    have just as easily called it oversight of Congress because we
    created the problem that we are here to discuss today.
        The problem is the number of Federal and regulatory crimes
    has simply escalated out of control, to the point that law-
    abiding Americans unknowingly commit several crimes every day.
    According to one study, the average American commits three
    felonies per day, which does not consider the overwhelming
    number of misdemeanors or civil violations.
        In some instances, the laws are so obscure and vague that
    even law enforcement and Federal agencies are unaware that they
    even exist. The U.S. Code is estimated to contain more than
    5,000 crimes today. I will hold it up for you.
        This massive tome is the criminal code.
        Just a decade ago some scholars estimated that there were
    approximately 4,500 crimes. The fact that these numbers are
    just estimates underscores the severity of the problem.
        According to a study by the Federalist Society, the number
    of Federal criminal offenses increased by 30 percent between
    1980-2004. There were 452 new Federal criminal offenses enacted
    between 2000-2007, averaging 56.5 new crimes per year. Over the
    past three decades Congress has been averaging 500 new crimes
    per decade.
        Keep in mind that these estimated 5,000 criminal laws are
    not all neatly tucked into Title 18, rather, they are scattered
    around the other 49 titles as well. The fact that this is only
    an estimate means that no one knows exactly how many Federal
    laws subject U.S. citizens to criminal sanction. That includes
    Congress, the Department of Justice, and other Federal agencies
    responsible for enforcing those laws, let alone your ordinary
    American.
        I called when I first got elected, initially I wanted to
    take care, and so 8-9 years ago when I was here I called the
    Congressional Research Service and I said, ``How many, how many
    crimes do we have,'' not just in the Federal Code but through
    regulatory agencies?
        They said--I am not kidding you when I say this--they said,
    ``No one knows.''
        I thought that it is impossible that no one knows.
    Estimates have that over 300,000. So, I guess it truly is no
    one knows.
        So, how did we get here? After all, our Founding Fathers
    first enumerated Federal crimes in the Crimes Act of 1790. That
    act enumerated 23 Federal crimes and established punishments
    for those crimes.
        Among others, the Crimes Act of 1790 established crimes for
    treason, piracy, and counterfeiting. While the legislation did
    establish some crimes against the person such as murder, and
    crimes against property such as larceny, the Federal
    jurisdiction of those crimes is limited to Federal property and
    Federal territories.
        Over the past century Congress has lost its way. Instead
    of--excuse me--methodically and deliberatively crafting a
    commonsense criminal code, Congress acted in a knee-jerk
    reaction to every minor and major crisis. In doing so, Congress
    believed that there always had to be a Federal response to
    every headline and every breaking news story.
        So, one academic has aptly noted,

            It was the spate of bank robberies by John Dillinger in the
            1930s that provoked passage of the Federal Bank Robbery
            Statute. The kidnaping of the Lindbergh baby about the same
            time caused passage of the Federal statute on kidnapping. The
            assassination of President Kennedy in the early 1960s prompted
            the statue on Presidential assassination. And the killing of
            Senator Robert Kennedy in the late 1960s that resulted in the
            passage of a statute finally making it a Federal crime to kill
            a Member of Congress.

    More recently we saw the enactment of Sarbanes-Oxley in
    response to the Enron scandal.
        All of us on the dias have witnessed this phenomenon among
    our own colleagues. Some have termed this the accumulation
    approach to offenses whereby Congress has simply accumulated
    new offenses for 200 years or so, with little examination or
    reformulation of existing offenses, which has resulted in
    serious overlaps in coverage and irrationalities among offense
    crime penalties which--excuse me--offense penalties, which
    create new possibilities for disparity in treatment and for
    double punishment for the same harm or evil.
        This leads to absurdities. For example, the Code of Federal
    Regulations makes it a Federal crime to sell a quarantined
    zebra while it is still in quarantine.
        Another, 16 U.S.C. 703, and 50 C.F.R. Section 20.91(a) make
    it a Federal crime to offer to buy swan feathers for use in
    making a woman's hat.
        According to one scholar, the proliferation of crimes makes
    it extraordinarily difficult to ferret out the law applicable
    to a particular factual situation. It also creates unfairness
    within Federal law, which provides Federal prosecutors with a
    near limitless menu to pursue criminal defendants.
        When Congress isn't creating new criminal code provisions,
    it is passing laws that allow--excuse me--unelected bureaucrats
    to write regulations that carry civil and criminal penalties.
    To make matters worse, many of these regulatory crimes are
    strict liability crimes. Many ordinances do not have mens rea
    requirements, therefore, these ordinances make it a violation
    of law regardless of whether someone intended to break the law
    in question.
        As a result, Congress wrote and passed a slew of strict
    liability crimes in which the defendant was not required to
    possess the mens rea typically required to establish guilt of
    the accused. This resulted in both Federal agencies and
    Congress using regulatory crimes as another tool to penalize
    arguably innocent citizens, resulting in the deprivation of
    liberty and the loss of rights, such as the right to vote or
    possess a firearm.
        What we all too often forget is that many of the problems
    we seek to solve are actually State and local issues. Under the
    Federal system, the U.S. Supreme Court has observed that,

            States possess primary authority for defining and enforcing the
            criminal law, and our national government is one of delegated
            powers alone. Under our Federal system, the administration of
            criminal justice rests with the States, except as Congress,
            acting within the scope of those delegated powers, has created
            offenses against the United States.

        Congress has not relented and continues to add Federal
    crimes to our Federal code. Congress can and should restrain
    from over-legislating issues that should be left to State and
    local governments.
        This hearing is an opportunity to examine potential
    legislation introduced in past Congresses to restrict Federal
    agencies' ability to criminalize conduct that a reasonable,
    that a reasonable person would consider lawful.
        Thank you. I look forward to hearing from our witnesses and
    the Members.
        I will yield back and recognize the Ranking Member Ms.
    McBath for her opening statement.
        Ms. McBath. Well, thank you, Chair.
        I want to thank you four witnesses today, those of you that
    I was able to shake hands with. Mr. Tolman, I am sorry, I
    didn't get a chance to properly thank you for being here today.
    Thank you for being with us on this hearing on
    overcriminalization.
        Our criminal justice system has many important purposes,
    laying out the laws that, if followed, prevent us from harming
    one another, and making our country safer.
        Our criminal laws prohibit murder, drug trafficking, and
    fraud, and impose harsh penalties for those who harm others,
    whether it be physically or financially. Many of our laws are
    written clearly to achieve this goal. Many of our law
    enforcement officers and prosecutors use their judgment to
    prioritize cases in which they can address the gravest
    injustices.
        Unfortunately, some of our laws are not well-written at
    all. Some actors in our justice system do not have their
    priorities in order. Whether due to misguided leadership, or
    lack of resources, charges are sometimes brought against those
    who are the easiest to prosecute rather than to those who have
    caused the greatest harm. Often this results in the
    disproportionate incarceration of people of color, people with
    limited financial resources, immigrants, people suffering from
    addiction, and even people who are actually victims of crime,
    such as those who commit crimes while being victims of human
    trafficking.
        Overcriminalization, the proliferation of Federal crimes
    that cover more and more conduct, exasperates this problem. It
    leads to more surveillance, profiling, and targeting within the
    minority communities. It allows for people to face multiple
    charges for one criminal act, lengthening their sentences and
    increasing mass incarceration.
        Minorities are already subjected to harsher penalties for
    committing the same crimes. The variations of potential charges
    brought on by our laws allow for even more variability,
    increasing the potential for discrimination in a system that is
    supposed to be impartial.
        Because of this, communities have lost trust in public
    safety and the overall system. Many don't feel safe. They don't
    feel supported enough to call the police when they witness a
    crime or provide a tip that may break open a case, for fear of
    being arrested themselves or prosecuted. Which, in turn, makes
    it even harder to prosecute serious crimes.
        This problem is especially troubling, given this
    Administration's stated priorities. President Trump has already
    repeated vowed to use the criminal justice system for his own
    interests, rounding up nonviolent immigrants and people who
    look like immigrants, pursuing his political enemies,
    exonerating grifters, and even mass pardons for those who
    violently assaulted our police officers here in Washington on
    the Hill January 6th, just because they did so in the name of
    Trump.
        This is an incredible abuse of our criminal justice system
    which should be focused on preventing and prosecuting violent
    crimes, preventing theft of families, hard-earned surveys--
    savings, and holding corporations accountable when they harm
    workers and our consumers.
        We need to return to an evidence-based policy agenda that
    actually uses our limited resources to make us safer.
        That is why I am proud to colead, along with Congressman
    Roy, Ranking Member Biggs, and Congressman Cohen the Count the
    Crimes to Cut Act. This bipartisan bill would require the
    Attorney General to provide us with a report detailing all
    Federal crimes, including the elements, the potential
    penalties, and the number of prosecutions in the last 15 years,
    and the mens rea requirement, which asks what the mental State
    of the person was at the time that they committed the crime.
        This will help us with the places where we might eliminate
    policies that simply don't make sense so we can make sure that
    our criminal justice system is focused on what really, really
    matters.
        I look forward to hearing more from each of our witnesses
    today about this bipartisan bill that will directly address
    overcriminalization and other ways that we might be able to
    address this ongoing problem.
        I ask unanimous consent to enter into the record a
    statement for the record on today's hearing from the National
    Association of Criminal Defense Attorneys.
        Mr. Biggs. Without objection.
        Ms. McBath. Thank you. With that, I yield back.
        Mr. Biggs. The gentlelady yields back. I will turn to the
    Ranking Member of the entire Committee, Mr. Raskin, and yield
    to you if you would like.
        Mr. Raskin. Thank you, Chair Biggs. I appreciate it. Thanks
    to the Ranking Member Ms. McBath. Thanks to the witnesses for
    joining us today.
        Criminal Defense Attorney Mike Chase has documented some of
    the most preposterous crimes in the Federal code.
        For example, it is a Federal crime to sell Swiss cheese
    without holes in it. Some people prefer Swiss cheese without
    holes in it, but it is a crime to sell it.
        It is also a Federal crime to receive through interstate
    commerce a small toy ball that doesn't contain a warning that
    says, ``This toy is a small ball.''
        Apparently, it is still a crime to sell canned green beans
    and call them stringless unless you are sure they are, in fact,
    stringless.
        So, prosecutors may be unlikely to charge some of these
    ridiculous crimes on their own, but overcriminalization is a
    serious problem nonetheless because it is an invitation to
    arbitrary prosecution and selective political prosecution.
        We can see and quantify who the overcriminalization problem
    affects most directly: People who are at a socioeconomic
    disadvantage, people who don't have the lawyers to defend
    themselves against such prosecutions with immigrants, people
    with disabilities. Between Federal, State, local, and Tribal
    criminal justice systems nearly two million people in the U.S.
    are incarcerated, costing taxpayers $182 billion a year.
        Congress often crafts new criminal offenses and expands
    existing crimes without considering whether the Federal
    Government should even be involved in the underlying conduct.
    Recent studies estimate there are nearly 5,000 statutory
    Federal crimes, and between 300,000-400,000 crimes in the
    regulatory code.
        According to one study, Congress created 56 new crimes
    every year between 2,000-2,008, despite the fact that crime
    rates were actually declining during this time period.
        While Federal criminal law plays a vital role, undoubtedly,
    in protecting the public, it should complement State law rather
    than duplicate it, and it should not be the source of an
    extraordinary burden in the lives of the people.
        Some people seem to escape the trend of
    overcriminalization. Criminal prosecutions of white-collar
    crimes from public corruption to tax evasion have been
    declining for decades. Under the current Administration those
    statistics are likely to plummet further, given the Department
    of Justice's gutting of the department's top anticorruption
    unit and its removal of its own power to charge politicians and
    public officials for bribery and extortion in some cases, its
    disbanding of anticorruption task forces, and its purge of
    veteran prosecutors and agents who are dedicated to public
    safety but who have run afoul of the new pinched political
    correctness standards of the Administration. These changes have
    taken a bad situation, and they have made it worse.
        So, instead of playing politics and trying to prove who is
    tougher on crime, we should work in a bipartisan manner to
    craft evidence-based policy that keeps all of us safe. We could
    do more to fight crime by addressing underlying issues that
    give rise to crime and thoroughly studying the criminal code.
        During last week's House Judiciary Committee consideration
    of the Reconciliation Bill I tried to restore funding to
    hundreds of critical grant programs that were cut by DOGE.
    Unfortunately, my colleagues refused to even discuss them and
    voted against our amendment to restore funding to these
    programs addressing the needs of crime victims, victims of rape
    and sexual assault.
        We can all agree that we need to make sure that our Federal
    criminal laws are clear and fairly enforced. We cannot have a
    criminal justice system that holds the President's allies above
    the law, gutting enforcement of fraud and corruption offenses,
    and pardoning January 6th top feeders and fraudsters who happen
    to be allies of the President, while threatening criminal
    prosecution against journalists, politicians, and peaceful
    protestors who speak out against the current Administration.
        I look forward to working with my colleagues to ensure that
    the Federal Criminal Code and its enforcement serves the public
    safety of all the people.
        Thank you, Mr. Chair. I yield back.
        Mr. Biggs. The gentleman yields back.
        Without objection, all other opening statements will be
    included in the record. I will now introduce today's witnesses.
        I will start with Mr. Brett Tolman. Mr. Tolman is the
    founder of the Tolman Group, a public policy law firm that
    works to hold Federal, State, and local governments
    accountable, and advance transparency. He is also the Executive
    Director of Right on Crime, an organization that advocates for
    criminal justice reform.
        Mr. Tolman previously served as the United States Attorney
    for the District of Utah and has testified before Congress
    multiple times on criminal justice issues, including the First
    Step Act, and many times before this Committee.
        Welcome, Mr. Tolman.
        Mr. Tolman. Thank you.
        Mr. Biggs. Mr. Jonathan Turley, Professor Jonathan Turley
    is the J.B. and Maurice C. Shapiro Professor of Public Interest
    Law, Director of the Environmental Law Advocacy Center, and
    Executive Director of the Project for Older Prisoners at the
    George Washington University School of Law.
        Professor Turley has written and litigated on a wide range
    of areas of the law, including the question of
    overcriminalization before us today. He has also testified here
    and been before this Committee a number of times.
        Mr. GianCarlo Canaparo is a Senior Legal Fellow at the
    Edwin Meese III Center for Legal and Judicial Studies at The
    Heritage Foundation. His research focuses on constitutional and
    administrative law, civil rights, the rule of law and the
    courts. He was the co-author of the study that almost everybody
    up here has referenced already iterating something in the order
    of 5,200 Federal crimes in the current Federal Criminal Code.
        Thank you for being with us.
        Mr. Michael Fox is a Legal Fellow at the CATO Institute's
    Project on Criminal Justice. His research focuses on
    overcriminalization, policing, and the criminal justice system.
    He previously served as a public defender in Colorado.
        We welcome each of you today. Thank you for being here. We
    will begin by swearing you in.
        Would each of you please rise and raise your right hand.
        Do you swear or affirm under penalty of perjury that the
    testimony you are about to give is true and correct to the best
    of your knowledge, information, and belief, so help you God.
        Let the record reflect that the witnesses have answered in
    the affirmative.
        Thank you, each.
        Please know that your written testimony will be entered
    into the record in its entirety. Accordingly, we ask that you
    summarize your testimony in five minutes. If you are getting
    close, I tend to tap to kind of give you a 15-second warning.
    Then I really hammered it.
        No, I am just kidding. We want to get as close to the 5-
    minutes as possible.
        So, we are going to start. We are just going to go down the
    line today. We will begin with you, Mr. Fox. You are recognized
    for your five minutes.

                        STATEMENT OF MICHAEL FOX

        Mr. Fox. Thank you, Chair Biggs, Ranking Member McBath,
    Ranking Member Raskin, and the distinguished Members of the
    Committee. It is an honor to speak to you today about the
    rampant overcriminalization and the very real impact it has had
    on people across the Nation.
        We are a Nation of too many laws. As has been said, over
    5,200 Federal criminal statutes alone, and that is not counting
    the over 300-400 Federal regulations, despite having never been
    passed and land Americans behind bars.
        The Federal Government is one of the enumerated powers.
    Yet, this important limitation hasn't stopped Congress from
    enacting criminal statutes that far exceed the legitimate ambit
    of the Federal Government, nor has it stopped the Justice
    Department from enforcing laws in a manner inconsistent with
    constitutional limits or legislative intent.
        With so many laws and regulations, it is easy for good
    people to become entangled in our criminal justice system
    through no fault of their own. While leading a shark diving
    charter, John Moore and Tanner Mansell stumbled on what
    appeared to be the work of poachers. They cut the line, freed
    the sharks, and reported it to authorities. That would change
    their lives forever.
        Unbeknownst to Moore and Mansell, it was actually a bona
    fide research project. In an act that defies commonsense,
    Assistant U.S. Attorney Thomas Watts Fitzgerald charged them
    with felony theft within the maritime jurisdiction of the
    United States. The trial judge didn't give the defense
    requested jury instruction explaining what rational people
    would understand to be theft:

            The wrongful taking of property with the intent to deprive the
            owner of the use and benefit and convert it to the use of one's
            own, one's self or another.

        The jurors sent seven notes to the judge begging for a way
    to acquit before reluctantly convicting Moore and Mansell. The
    11th Circuit Court of Appeals affirmed. Nevertheless, Judge
    Barbara Lagoa lambasted the prosecuted and castigated Watts
    Fitzgerald by name for his imprudent exercise of discretion in
    choosing to prosecute the case. Judge Lagoa highlighted the
    shear absurdity of branding Moore and Mansell lifelong felons
    for engaging in conduct that no rational human being would
    interpret as criminal.
        Our system was painstakingly designed to discourage ill-
    conceived prosecutions and palpably unjust convictions. Yet, it
    plainly failed to do so here.
        At the founding, the greatest protection against unjust
    convictions and excessive punishment was the citizen jury. The
    framers understood that depriving a human being of their
    liberty should not be easy. The Government had to prove to a
    jury that a given prosecution was wise, fair, and legitimate.
    Jurors would scrutinize the Government's actions with a fine-
    toothed comb and ensure that the sentence was proportionate to
    the wrongfulness of the crime. Jurors had a civic duty to
    acquit against the evidence when justice demanded.
        It is indisputable that jurors still have this important
    power today. Devoid of juries as a meaningful safeguard against
    an overly punitive government, it is all the more important
    that we robustly apply the other core defendant protecting
    doctrines.
        At common law, prosecutors had to prove that a defendant
    knew or intended to commit a crime. This is known as mens rea.
        It is highly doubtful that a jury cognizant of its historic
    power to acquit against the evidence would have convicted Moore
    and Mansell. It is highly unlikely Watts Fitzgerald would have
    even charged them if he had known that a jury could call his
    bluff. Likewise, had the jury been given a narrow instruction
    on the definition of the word ``theft,'' the jurors likely
    would have acquitted as well.
        You, too, can easily become a criminal. It is as simple as
    walking your dog on Supreme Court grounds with a standard six-
    foot leash, where the maximum permitted length is only four
    feet. Any longer, and you could be looking at 60 days in jail.
    No one is aware of this regulation because there is no signage
    putting potential violators on notice. Yet, anyone of us could
    be charged with violating it, despite the reality that no
    reasonable person would understand this to be against the law.
        There are many actions Congress can take to mitigate these
    profound injustices. Here are some examples:
        Draft prescription legislation; repeal statutes that confer
    blanket criminal lawmaking authority on Federal agencies;
    include a mens rea component in every new statute; establish a
    default mens rea setting where existing statutes are silent;
    and mandate that Federal judges inform jurors of their historic
    prerogative to acquit against the evidence.
        As Justice Gorsuch notes in his recent book, ``criminal
    laws aren't the solution to every problem.''
        A criminal justice system must be perceived by the public
    as legitimate to be effective. A system that seeks to send
    well-meaning people like John Moore and Tanner Mansell to
    prison over a veritable mistake, merits neither our confidence
    nor our respect. I am eager to work with you to change that.
        Thank you for holding this important hearing. I look
    forward to your questions.
        [The prepared statement of Mr. Fox follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Biggs. Thank you. Now, we will recognize Mr. Canaparo
    for your five minutes.

                    STATEMENT OF GIANCARLO CANAPARO

        Mr. Canaparo. Thank you all very much for having me. It is
    my pleasure and honor to testify.
        My name is GianCarlo Canaparo. Among other things, as was
    mentioned, I wrote this report which is, as far as we know, the
    most recent and up-to-date count of the crimes in the United
    States Code only.
        I want to begin with the ancient Roman maxim that ignorance
    of the law is no excuse. That old rulemakes very good sense
    when the law prohibits things that are morally wrong like
    murder, kidnaping, or theft. Because every person knows that
    morally wrong actions are often legal, and it is fair to
    presume that people know that, we can also fairly presume
    knowledge of some laws that are morally neutral, what lawyers
    call malum prohibitum crimes, provided that those crimes are
    well-publicized, not too numerous, and based on commonsense
    like, for instance, the rule against smoking in this building.
        What if malum prohibitum crimes are not well-publicized,
    numbering in the tens or hundreds of thousands, and defy
    commonsense?
        What if, for instance, as Congressman Raskin mentioned, we
    needed a crime to sell Swiss cheese that didn't have holes in
    it, and what if we divided that crime among four different laws
    and scattered them pell-mell throughout hundreds of thousands
    of pages of law? America has in fact done exactly that because
    it is a Federal crime to sell Swiss cheese without holes in it.
    To know that you would have to consult three statutory
    provisions and a Federal regulation.
        It is not the only such crime. In 2022, I partnered with
    the Mercatus Institute to deploy an algorithm to count the
    crimes in the--to count the provisions in the United States
    Code that create at least one crime, and then to estimate the
    number of crimes contained therein.
        Our report found that the number was 5,199 crimes in the
    U.S. Code. That is only in the U.S. Code. That is already more
    than anyone person could know. The Code of Federal Regulation
    includes probably hundreds of thousands more. As you mentioned,
    Chair, nobody actually knows.
        Now, the Swiss cheese crime is only one example. As
    Representative Raskin mentioned, Mike Chase, the lawyer who
    wrote ``How to Become A Federal Criminal,'' it is a hilarious
    and depressing book about some of these most extreme examples.
        It is illegal to sell bacon that is in a package that
    doesn't display the representative slice through a visual
    window, clear window.
        It is a crime to submit a design to the Federal Duck Stamp
    Contest if your design does not primarily feature eligible
    waterfowl.
        Again, a crime to sell a marble across State lines if it is
    not marked with a warning that says this toy is a marble.
        Now, there is some laughter in the room because those
    examples are ridiculous. That is the first problem with the
    proliferation of malum prohibitum crimes. The criminal law
    should not be ridiculous. Ridiculousness brings the criminal
    law, indeed, the whole system of law into disrepute. It brings
    our lawmakers into disrepute, both Congress and the agencies,
    which are meant to be reasonable and competent Governors and
    not pedantic nannies.
        The second problem is that if knowledge of the law is not a
    reality, the rule of law itself suffers. Everyone will know, of
    course, that they can't actually know the law. Everyone will
    know, therefore, that they can't obey the law. All the while
    everyone will remember that they cannot justly be expected to
    do the impossible.
        Americans will rightly conclude, then, that such a system
    of laws is unjust and worthy--unworthy of both obedience and
    defense.
        Meanwhile, the Government won't be able to enforce all
    those laws equally and fairly, so the rule of law will be
    tainted by bias or the appearance of bias, both of which are
    destructive to the rule of law.
        Now, numerosity is one problem. The lack of any intent or
    mens rea element is another.
        The intent element is a requirement as ancient as the maxim
    that ignorance of the law is no excuse. At the same time that
    we wrote the foundation under that maxim we eliminated intent
    elements from many of those numerous crimes. That means that
    you can be guilty of violating countless thousands of Federal
    criminal laws even though you don't know that they exist, and
    even if you don't know that you are breaking them.
        So, for instance, the Swiss cheese crime has no intent
    element, so even if you don't know about that law, and even if
    you don't know that your Swiss cheese lacks holes, you can be
    prosecuted.
        You can find many more examples of such prosecutions in my
    written testimony and in the sources cited therein.
        The take-away from all of this is that the proliferation of
    Federal crimes and erosion of intent elements has made
    America's criminal law both ridiculous and unfair. That status
    quo is terrible for the rule of law and ought to be changed.
        What could Congress do?
        You could order agencies to count the criminal regulations
    to get a handle on the problem. A word of caution: That passes
    beyond the Department of Justice. It may even at this point be
    beyond the agencies. It might be better simply to repeal
    regulatory crimes that have not been enforced in, say, 10
    years.
        Meanwhile, Congress can and should create a default intent
    element in any Federal regulation, regulatory crime that lacks
    one.
        Finally, Congress or the courts might create a limited
    mistake of law defense for certain malum prohibitum crimes.
        All these are good options. I hope you will consider them.
    Thank you for inviting me.
        [The prepared statement of Mr. Canaparo follows:]

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        Mr. Biggs. Thank you.
        The gentleman's time has expired.
        The Chair recognized Professor Turley for your five
    minutes.

                      STATEMENT OF JONATHAN TURKEY

        Mr. Turley. Thank you, Chair Briggs, Ranking Member McBath,
    Chair Jordan, and the Ranking Member Raskin for the pleasure of
    and honor of speaking to you today about criminalization of
    Federal law.
        It was exactly 27 years ago, on May 7, 1998, that I
    appeared in this room to testify on overcriminalization of
    Federal law. I note this for two reasons: First, my birthday
    was just yesterday and I didn't think I could feel any older
    then, so I thank you for making me feel very, very old. The
    second is, too, it is something of a marking point, a
    navigational beacon on how little success we have had over 27
    years. We are facing the same crisis of overcriminalization.
        There are an estimated over 5,000 Federal crimes, and
    hundreds of thousands of regulatory crimes. This would have
    been unimaginable for the framers. After all, in the
    Constitution there are only three crimes mentioned: Treason,
    piracy, and counterfeiting. When Congress got to the point off
    actually creating a criminal code they came up with 23. They
    seemed to think that was sufficient.
        It would be truly otherworldly for them to know what
    happened to the Federal Criminal Code, particularly because
    they believed that police powers largely rested with the
    States.
        The danger is that it erases the line between criminal and
    civil conduct. That danger is that criminal law not just is
    meant to create a stigma because it is supposed to reflect an
    intent of harmful or even evil intent, but it also creates all
    types of costs for our legal system. The framers talked about
    that. Madison talked about it in the Federalist 62.
        What they said is that you can't make criminal laws where
    people or citizens just have to guess what is criminal. It has
    to be the brightest of bright line rules.
        Instead, we have become a Nation of mattress tag felons
    where everything that you do can also be treated as a felony.
        Now, while we say ignorance is no excuse, the problem is
    that Congress has created a system where you have to be
    ignorant of the crimes because nobody, including Congress,
    knows what the crimes are. So, it is hardly surprising that the
    citizens do not.
        One out of every 47 adults are now reportedly under some
    form of correctional supervision. That is also a cost. The
    proliferation of crimes is moving a huge percentage of citizens
    into the criminal justice system.
        It also allows prosecutors to overcharge, also to coerce by
    plea bargain. Citizens are faced with near bankruptcy, if not
    direct bankruptcy, in fighting a criminal case.
        The Supreme Court has tried its best to try to reinforce
    the narrow meaning of crimes. As Oliver Wendell Holmes said,
    ``If my fellow citizens want to go to Hell, I will help them.
    It is my job.'' The point is, as was raised in a couple of
    cases by the Justices, Congress is allowed to do stupid things.
    Congress isn't sending anyone to Hell, it has created Hell for
    the entire citizenship of this country because no one knows
    what is a crime anymore, and anyone can be charged as a felon.
    That is wrong.
        Now, this is a problem of Congress' making, and Congress
    will have to solve it. I have suggested some ideas in my
    testimony including, as was stated earlier, an effort to get
    agencies, preferably through an Executive Order, to either name
    all of the crimes under their jurisdiction or explain why they
    cannot do so.
        I have also encouraged the creation of a Committee with a
    counterpart in the executive branch that can act more swiftly
    to reduce these.
        I actually believe there is one reason to be optimistic
    here. With the advantage of AI, and my colleague has used it
    brilliantly with his algorithm, it may be possible today, when
    it was not possible 27 years ago when I spoke to this Committee
    last on this subject, it may be possible for us to actually do
    something about this, using AI and properly written algorithms
    to identify the number of crimes and to do something about
    them.
        I hope that we are all up to that task because this is,
    perhaps, the darkest legacy of the U.S. Congress. It has failed
    the American people. It has used criminalization as a way of
    putting an exclamation point on their issues. That has to end.
        I hope some of my suggestions may help. I have the honor
    again of speaking with you today. I would be happy to answer
    any questions.
        [The prepared statement of Mr. Turley follows:]

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        Mr. Biggs. Thank you, Professor Turley. We are thrilled
    that you would spend the birthday eve with us, as you did so
    many years ago.
        Now, Mr. Tolman, you are recognized for five minutes.

                       STATEMENT OF BRETT TOLMAN

        Mr. Tolman. Thank you, Chairm Biggs, Ranking Member McBath,
    Ranking Member Raskin, and the Members of the Subcommittee.
    Thank you for having me.
        I spent 25-plus years working in the Federal criminal
    justice system, and over 15 years warning that the justice
    system is a powder keg waiting to blow.
        Let me get straight to the point. Overcriminalization is a
    real and growing threat to our justice system, to the rule of
    law, and to individual freedom in this country.
    Overcriminalization happens when the Government creates too
    many laws, laws most Americans don't know even exist.
        We don't know, as many have stated, we don't know the
    number. I am encouraged by Professor Turley's comments that we
    may eventually know that number.
        It is not justice as it currently stands, it is chaos
    disguised as law.
        Let me give you an example, one that I learned on Instagram
    of Charles and Heather Maude. When I saw their story, I reached
    out and volunteered to represent them pro bono.
        They are a South Dakota ranching family. Under the Biden
    DOJ they were charged with Federal crimes over a land dispute
    involving a fence on property that had been in their family for
    over 100 years. They were threatened not only with prosecution,
    but they were indicted and then told that they should seek
    alternatives to raising their two minor children Lyle and
    Kennedy.
        I was honored to fight on their behalf. Last week we
    announced the dismissal of the criminal case against them.
        It is the abusive prosecution that we see all too often in
    our justice system. With the attorney--help of the Attorney
    General Bondi and the Secretary of the Agriculture Brooke
    Rollins these charges were dropped for this family. It should
    not have ever happened. It shouldn't take those at the highest
    levels having to review what is being done by those with this
    power for ultimately justice to be applied.
        This isn't how a free Nation should operate. We are
    punishing people who make mistakes, not criminals, not violent
    offenders, just people who happen to run afoul, often of laws
    that they don't understand or they don't know.
        We incarcerate indiscriminately. It is not making us safer.
    Nearly half of Federal inmates are nonviolent drug offenders.
    Our prisons are beyond capacity. To add fuel to the fire,
    hundreds of thousands of Americans remain on some kind of
    community supervision for many years after their release, far
    beyond what studies have shown reduce recidivism.
        It is estimated $500 million and burdens on parole
    officers' valuable time are required now to monitor nonviolent
    offenders. That is why the Safer Supervision Act must be
    reintroduced to streamline and simplify safer--or Federal
    supervision. It is just one tool to address
    overcriminalization.
        In addition, prosecutors have too much discretion, too
    little restraint, and no, virtually no oversight.
        I have been a prosecutor. I know how important those tools
    are to catch true criminals. Without constitutional checks like
    mens rea, the intent to commit a crime, we risk punishing
    innocent Americans for actions they didn't even know were
    illegal.
        Adding to their unsettling perception of unbridled power is
    the use of civil asset forfeiture, abusive and unconstitutional
    way to take citizens' property without ever securing a criminal
    conviction.
        That is why I support Chair Biggs' Mens Rea Reform Act and
    the FAIR Act, which restores the basic principle that intent
    matters.
        The administrative State is another part of the problem.
    Unelected bureaucrats are creating tens of thousands of new
    rules and regulatory crimes every year: Seventy-five to one
    compared to Congress. Most of those rules are made by people
    whom you didn't vote for and cannot hold accountable.
        That is why I also support Representative Chip Roy's Count
    the Crimes to Cut Act. It is simple. We need to know what
    crimes are on the books and who is enforcing them. Let's audit
    this system. It is commonsense and it is required if we want a
    constitutional rule of law in our justice system.
        We cannot ignore the role that some judges are playing.
    When judges pick winners and losers based on politics, not law,
    they erode the trust in the entire system. Recent rulings on
    deportation, election integrity, and sanctuary cities are just
    the latest examples. This issue is bipartisan. Democrats have
    also tried to pack courts when decisions don't go their way.
        In short, overcriminalization fuels lawfare, undermines our
    Constitution, and strips Americans of their rights and dignity,
    and leads to over-incarceration, abuse of prosecutorial
    discretion, runaway regulation, and judicial activism.
        [The prepared statement of Mr. Tolman follows:]

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        Mr. Biggs. Thank you.
        We appreciate all your testimony. Now, we will begin,
    proceed under the five-minute rule with questions.
        The Chair recognizes the gentleman from North Carolina, Mr.
    Knott for five minutes.
        Mr. Knott. Thank you, Mr. Chair.
        To the witnesses and those opening statements, this is an
    important topic, and I thank you for your scholarship and for
    your advocacy.
        I will put just one single plug in as a former Federal
    prosecutor, like you, Mr. Tolman. I will say that as a society
    we all have benefited from good criminal law enforcement. There
    is a very distinct role and an important role in the legitimate
    use of the prosecutorial authorities and to combat real crime.
    As an organized crime prosecutor I saw real crime.
        Unfortunately, the topic that we are diving into today
    delegit-
    imizes, I would submit, the use of criminal law. It weakens it
    and it pollutes it in the minds of all Americans. I am thrilled
    that we are having this discussion.
        One of the unfortunate effects at the local, the State, and
    the Federal level--Mr. Tolman your example speaks to this quite
    clearly--is it inverts the intended constitutional balance
    where the Government should be working for the citizens, but in
    reality, all citizens now, because of the abuse, are working
    for the Government. Whether you are an educator, a business
    owner, whether you are a family, a someone who is just an
    independent person, your ability to operate freely has been
    greatly hindered over the last 50 years because of the
    overcriminalization of what should be civil actions.
        To that end, Mr. Tolman, the Administrative State, in my
    opinion, and sort of its all-encompassing bureaucracy has been
    so confusing and robust in its growth that most people don't
    even know how to conceptualize it, respond to it, adhere to it,
    challenge it if there is an enforcement action of some sort.
        What are some ways that citizens can or how should we
    better enable citizens to protest and to fight back when the
    Administrative State approaches them?
        Mr. Tolman. I couldn't agree more. It has been almost
    impossible.
        Two things: The Attorney General now has started a
    commission that will be reevaluating cases that lack that
    appropriate intent, or that look like they might have been
    warfare, lawfare, or politicization of the power. In addition,
    Secretary Rollins, and I think other agencies should follow,
    has opened up a hotline for individuals to call and to identify
    their case and what is going on, and to be able to plead their
    case.
        I only happened on the Maudes based on Instagram and a
    social media post. I would love to know those others out there
    of all walks of life that are being targeted unfairly by our
    Justice Department.
        Mr. Knott. Mr. Turley, in your opinion what is something
    simple that we could do quickly to give citizens relief from
    these confusing patchworks of criminal enforcement? For
    instance, what about a reasonable care defense or something
    that we could afford citizens efficiently and quickly right
    now?
        Mr. Turley. The challenge for Congress is this has
    snowballed to such a size, and it has--to mix my metaphor, it
    has also metastasizes throughout the system.
        Mr. Knott. Right.
        Mr. Turley. Most of the problems here are going to be
    administrative crimes where Congress creates a general crime,
    just leaves it to agencies to fill in the details. It is what
    Justice Scalia said, ``the fuzzy leaves the details to be
    sorted out by courts, legislation.'' He could add also by
    agencies.
        I suggested a couple of things that Congress can do to
    start here to make changes in how it proceeds.
        One is to establish a tight rule that if you create a new
    crime you have to not only go through multiple Committees but
    satisfy a narrow type of standard. That standard should include
    a mens rea requirement. That itself would at least stop the
    flow from here.
        Then you need to focus on what has already gone through the
    system. I suggest a couple of steps to try: First, gauge the
    exact number of crimes that were are dealing with here, but
    also to create a shadow system, to create a Committee here and
    also in the Executive Office that can work in realtime
    together.
        So, part of the problem is that the delay in dealing with
    this, as we saw with previous task forces, is just
    otherworldly.
        Mr. Knott. Right.
        Mr. Turley. Just the clock got burned and nothing really
    happened. I hope my testimony lays that out in some sense.
        Mr. Knott. It does.
        In terms of just the long term risk here when we look at
    potential criminalization of criminal preferences, what is the
    long term risk to our country if we don't get this under
    control?
        Mr. Turley. Well, it is interesting that this is--we always
    have a certain conceit that the problems we face today are
    unique. This was a problem with the framers they understood. If
    you make everything a crime, you make everyone a criminal.
    Then, frankly, it loses all distinction as what is a crime and
    what is a civil violation.
        Mr. Knott. Right.
        Mr. Turley. That line between what is criminal and what is
    civil is key to our rule of law. It is those are the
    navigational beacons for citizens to define their conduct. You
    lose that if you turn everyone into a presumptive criminal.
    Then, it changes what it is to be a citizen in this country.
        Basically, prosecutorial discretion becomes discretion that
    will turn anyone into a felony at any time--a felon at any
    time. That danger cannot be overstated.
        Mr. Biggs. The gentleman's time has expired.
        Mr. Knott. Thank you. I yield back.
        Mr. Biggs. Thank you.
        The Chair now recognizes the Ranking Member Ms. McBath for
    five minutes.
        Ms. McBath. Thank you, Mr. Chair.
        Mr. Fox, as you know, minorities and Members of
    marginalized communities often face barriers to accessing legal
    resources, including legal representation, knowledge of their
    rights, understanding the legal system, or the means to
    navigate a really complex legal system, and making them far
    more vulnerable to unjust prosecution and punishment.
        Can you just expound a little bit with us today and explain
    how overcriminalization exploits these disparities?
        Mr. Fox. Yes, sure.
        So, if you look at the Federal inmate population right now
    it looks like it is about 156,000 people. That is a lot,
    considering that the Federal Government actually doesn't have
    that much jurisdiction over crimes, mostly quintessential State
    laws and the lot there.
        If you look, it is 35 percent Black when the population is
    14 percent Black; 31 percent Hispanic when the population is 19
    percent Hispanic. A lot of these laws, it is just that they
    want to go after people that have limited means, that have less
    resources to fight back. So, that way they are able to go after
    people that they think are easy targets.
        As was mentioned earlier, a lot of the people that are in
    Federal prison is low level drug offenders and nonviolent drug
    offenders. These are not people who actually need to be
    incarcerated, who need to be in the system.
        We spend about $182 billion over the course of a year
    incarcerating 200 million--or, I am sorry, two million people.
    Frankly, all this does is undermine people's trust in the
    system. There are jurisdictions in certain cities in the
    country where the clearance rate for violent crimes is at or
    near zero. Everyone wants violent crimes solved, but when you
    are harassing people over things that most people agree
    shouldn't be crimes, you sort of undermine legitimacy. People
    are not willing to call the police. They are not willing to
    testify for the prosecution.
        When there was a lot of these communities, D.C. being one
    of them, that are over- and under-policed at the same time,
    meaning that there are a lot of officers per capita, yet the
    crime rates are still pretty high because the arrests are for
    low-level offenses that people just really don't want to get
    involved with.
        Ms. McBath. Thank you for that.
        Mr. Tolman, how does the investigation of minor crimes
    reduce the effectiveness of law enforcement personnel and
    prevent them from addressing violent crime?
        You touched on it a little bit earlier. So, if you could
    spend a little bit more time telling us about that?
        Mr. Tolman. Yes. We are not using our resources for the
    most important crimes and the crimes in which we need to be
    afraid of an individual rather than just mad at an individual
    for what they did.
        It is ironic that the one particular AUSA was referred to
    by Mr. Fox earlier. I actually had a case against him. It was
    an individual who owned an aquarium that brought in the wrong
    type of a fish and was saddled with a Federal felony. Did not
    know that he brought in the wrong type of fish. The paperwork
    was one of the issues.
        That happens every day in this country. We can talk about
    the crimes that are not being that we laugh at. Many of those
    crimes are being used by bureaucrat prosecutors.
        I am very proud of the work that I did, but the number of
    cases that I wish were actually aimed at the violent
    individuals in our communities, we have stopped working and
    being part of gang task forces across this country. We have
    limited the use of the Federal resources on sex trafficking and
    human trafficking.
        We have got to get back to being good partners to our State
    police and law enforcement officers who have the primary
    responsibility on violent crime.
        Ms. McBath. Thank you for that.
        Then, also, can you kind of explain how statutes that were
    meant to target our kingpins, like you just said, violent
    crime, like the mandatory minimum drug statutes that we have
    yet to meaningfully reform--that is easy for me to say--how
    they end up sweeping in the low-level offenders?
        Mr. Tolman. Well, absolutely. We are in a really backward
    system right now. We are using, oftentimes, higher level
    individuals in a drug distribution ring to cooperate and get
    credit against lower-level individuals.
        I have prosecuted many drug cases. We rarely ever were able
    to get intel on the upper levels and actually take down drug
    conspiracy rings. Instead, we utilized what we could to get
    low-level individuals.
        We simply did not have the knowledge. We didn't take the
    time or the patience because we didn't have the resources to
    investigate those conspiracies and those drug rings and cartels
    properly.
        Ms. McBath. Thank you so much. I yield back.
        Mr. Biggs. The gentlelady yields. The Chair recognizes the
    gentlelady from Florida, Ms. Lee.
        Ms. Lee. Thank you, Mr. Chair.
        Thank you to our witnesses for joining us today. I think
    you have a group of Members here that are very interested in
    finding ways to refine and streamline our criminal justice
    code. You all are very helpful with the ideas and thoughtful
    testimony that you have brought with you here today. I would
    like to go back to something and, Professor Turley, I am going
    to start with you.
        Mr. Fox told a story about a case in his opening remarks
    that I thought was very instructive in this way. I am a former
    State court judge. In my experience juries work very hard to
    follow the instructions that are given to them, most juries,
    and to apply the law correctly as charged by the court.
        What is the effect if the elements of an offense are
    incoherent or vague, what is the effect on the instruction that
    goes to the jury? How might that affect cases that they are
    deliberating on?
        Mr. Turley. Thank you for that question. It is probably one
    of the most important ones that the Committee can tackle.
        The effect is huge. I spent most of my career as a criminal
    defense attorney. I can say that there are certain crimes they
    don't have much of an argument to make because we have strict
    liability criminal offenses and criminal negligence offenses.
        I actually testified against both, 27 years ago. That those
    are two categories that the Congress should focus on that we
    could do away with most of those offenses. Because once you get
    into court you don't have much of an option.
        The point is that if you have got a client as a criminal
    defense attorney who comes to you on one of these crimes you
    have got if you take a look at the Yates case that went to the
    Supreme Court of the undersized grouper, right, those cases,
    well, we look at we go, my God, how did that ever be
    criminalized?
        It is a tough case for a criminal defense attorney because
    the judge is handcuffed. The judge is going to give
    instructions based on that statute. As you say, jurors are very
    faithful in carrying it forward when the judge tells them you
    have got to apply this.
        So, we have to eliminate those laws. We can't just rely on
    discretion.
        The other thing about prosecutorial discretion is
    enormously important because I really do agree what comes
    around when you talk about the role of prosecutors here, most
    prosecutors, like Mr. Tolman, are very faithful and very
    thoughtful. I have worked with a lot of great ones.
    Prosecutorial discretion only works if you frame the range of
    discretion.
        What you have done is you have blown away that frame. There
    are literally discretion of a prosecutor covers conduct that
    everyone commits every day, that is the danger. It is not that
    we are not saying you shouldn't have discretion, but you are
    the ones who are supposed to wall in the discretion and allow
    them to work within it.
        Ms. Lee. Staying on that point, I think that gets back to I
    believe it was Justice Scalia, the fuzzy laws that we have and
    hand over to regulatory agencies, share with us, if you will,
    what the consequence of that is when you leave too much
    discretion in the hands of the regulatory agents to--agencies
    to actually criminalize behavior?
        Have you seen disproportionate impact or exercise of that
    authority by different agencies?
        Mr. Turley. Yes.
        There are certain agencies that pull the trigger pretty
    fast. The point is that whether you are on the regulatory side
    or you are an actual prosecutor, there is a tendency to just
    lower the boom on people, to count stack. Because what you want
    is to get a plea agreement. Most cases end up in pleas.
        If you are on the defense side, you are looking at a client
    with limited funds. Those funds will evaporate the minute they
    start a criminal defense. I mean evaporate within months. They
    will have to sell their house. They will have to tap their
    relatives.
        In the alternative, the prosecutor says, look, instead of
    my bringing these hundred counts against you, I will let you
    plea out, plea out on two with no jail time.
        Most people accept that. They then become part of the
    criminal justice system. They get a record. That stigma follows
    them. They have trouble getting jobs. They have trouble
    possibly getting leases. It is a horrific system.
        Ms. Lee. On that subject, Mr. Tolman, I know in your
    written testimony you mentioned the Safer Supervision Act,
    which actually discusses the intersection between community
    safety and successful reintegration.
        Briefly, if you would, tell us why you believe those types
    of reforms to the supervised release system are important?
        Mr. Tolman. Yes. Just really quickly, the States are
    leading on this, conservative States are, are doing amazing
    things on this. They have realized that if we have them on
    supervision for a year, maybe 18 months at most, they are
    incentivized, they do what they are supposed to, they get on
    with their life.
        In the Federal system the average is almost five years of
    supervision.
        Ms. Lee. Thank you, Mr. Chair. I yield back.
        Mr. Biggs. The gentlelady yields. The Chair recognizes the
    Ranking Member of the entire Committee, Mr. Raskin.
        Mr. Raskin. Thank you very much, Mr. Chair.
        The Department of Justice announced that it would demote
    the Foreign Corrupt Practices Act and not bring prosecutions
    there. It sacked 17 inspectors general when it started, people
    who saved us a combined $91 billion last year in carrying out
    waste, fraud, abuse, and corruption in the Government.
        It pulled the plug on the corruption prosecution of Mayor
    Adams in New York after Mayor Adams agreed to engage in a
    political alliance with Donald Trump which then prompted the
    resignation, ultimately, of six or seven attorneys, including
    the U.S. Attorney for the Southern District Danielle Sassoon,
    who was a conservative Federalist Society lawyer and
    Republican.
        Her No. 2 also quit, saying that you would have to be a
    fool or a coward to give in to this kind of pressure.
        Then, they decimated the Public Integrity Unit. They
    dismantled the Kleptocracy Unit in the Department of Justice.
    They shut down other units focused on stopping foreign
    interference in American politics.
        Mr. Fox, why is prosecuting white-collar crime with
    specific enumerated offenses with definite material elements in
    the crime, why is prosecuting white-collar crime important?
        Mr. Fox. Yes, so I looked. It seems like there's about
    maybe seven percent, give or take, of crimes that DOJ
    prosecutes. It seems like they fall under the white-collar
    category. There's a lot of the work that the Federal Government
    prosecutes are things that far exceed the doctrine of
    enumerated powers, things like the Federal Government has
    absolutely zero business getting involved in. White-collar
    crime is one that arguably can fall under the ambit of the
    Federal Government.
        It's something that is important to discourage political
    corruption, make sure that people are being prosecuted because
    the Department of Justice has evidence that they committed a
    crime and they're not being prosecuted because of what their
    political views are or that they're not being let off because
    of what their political views are. People don't trust a system
    that targets people or ignores people based on the views they
    espouse or the people they support.
        Mr. Raskin. Do you think that undermines public trust in
    the justice system?
        Mr. Fox. Oh, dramatically.
        Mr. Raskin. It sends out the message that we have this two-
    track system. One for people who engage in kind of the run-of-
    the-mill State law crimes like assault, theft, or robbery.
    Then, one for white-collar criminals in the government, in
    corporations, or in politics who are able to get away with it
    if they know the President or they know the right person.
        Mr. Fox. Yes, I think that's right. It also goes back to
    the question Ranking Member McBath asked which is about, are
    they going to target people who they know will fight back
    versus who won't have their resources to. That's all very
    related there.
        Mr. Raskin. Yes. Have you studied the whole question of
    whether there is systematic inclusion of a mens rea requirement
    so we're not putting people in jail for most regulatory
    offenses?
        Mr. Fox. Yes. A lot of regulatory offenses and frankly also
    a lot of statutory crimes don't include a mens rea. The theft
    charge that I talked about before in the Moore and Mansell
    case, if I were to take Mr. Canaparo's water bottle and give it
    to Professor Turley, we're on Federal property, technically I
    could be charged. That's preposterous.
        No reasonable person would ever think that's theft. Without
    an actual explanation as to what theft is that I actually
    intended to take his wallet and bring it home with me. People
    would--yes, they would absolutely fall victim to these types of
    prosecutions which dramatically undermine trust in the system.
        Mr. Raskin. Yes, I understand that the Chair and I think
    Ms. McBath has the Count the Crimes Act which suggests that we
    don't even know how many crimes we have. There's been such a
    radical proliferation of offenses throughout the Federal code.
    Do you think it would be advisable for us once we've counted
    the crimes to propose a Cut the Crimes Act where we get rid of
    a lot of the offenses that transform malum prohibitum
    regulatory crimes into real criminal offenses that most people
    would think should apply only to malum in se?
        Mr. Fox. Yes, certainly, I know the Chair also has the Mens
    Rea Reform Act. Those two things in tandem, if you set a
    default mens rea that way we're not sweeping people into the
    criminal justice system over things they didn't know would be
    crimes. Then, also, I'm not sure it's actually possible to
    count all the crimes.
        Assuming we can do that, then yes, then we're able to sort
    of come to a consensus as to what doesn't belong. I would also
    say if we're not able to do that, there's other changes we
    could do. I have an idea that we could just inform jurors that
    they have the power to acquit against the evidence when justice
    requires. In a case where the Department of Justice brings a
    charge like the case I discussed before where any rational
    person would think it's absurd.
        The jury can be you know what? We don't agree with the
    defense theory. This is nonsense. We're going to acquit. That's
    the power they still have.
        Mr. Raskin. I yield back to Mr. Chair. I don't want to
    commit a criminal infraction here by going over my time.
        [Laughter.]
        Mr. Kiley. Too late.
        Mr. Biggs. Too late. The Chair recognizes the gentleman
    from California, Mr. Kiley.
        Mr. Kiley. Thank you, Mr. Chair. In California this last
    year, we passed an initiative to restore some consequences for
    things like retail theft. My slogan in connection with this
    proposition, Prop. 36, was Make Crime Illegal Again, because
    there are some things in our State like stealing that are sort
    of classic textbook criminal behavior that because of our
    criminal laws, folks could basically carry out with impunity.
        That did pass. There are also at the Federal level as has
    been mentioned ways in which we need to enforce the law against
    serious crimes in a more aggressive fashion. Perhaps there
    should be a corollary to that slogan, Make Crime Illegal Again,
    which is to make noncrimes legal again which is what we're
    talking about today.
        We shouldn't be prosecuting people for buying Swiss cheese
    without holes or for making a stamp with the wrong kind of duck
    on it or for accidentally buying the wrong kind of fish for
    your aquarium. There's some basic intuitive commonsense
    principles we would all agree that a criminal code should have
    that it should include things that a typical person either knew
    or should have known are wrong or are illegal. They should be
    reasonable things that make sense to people.
        Yes, this is the sort of thing that ought to be illegal.
    They should be in statutes that were issued by elected
    lawmakers. They should be accessible to the average citizen.
    They should be easy to understand for the average citizen.
        They should be coherent. We shouldn't have conflicting
    criminal laws. They should be enforced in an even-handed
    manner. None of those things are met with the current criminal
    code.
        There's a lot of--as we've discussed with liability crimes,
    there's a lot of things that aren't reasonable and don't make
    sense. It's a 75 to one ratio for crimes that are issued by
    bureaucrats as opposed to lawmakers. A lot of the criminal code
    is behind paywalls you have to pay money to access. Then even
    if you can access it, you can't make heads or tails about what
    it says without cross referencing the rest of the code.
        There're all kinds of conflicts within the body of law.
    Because the average person commits several crimes a day
    unwittingly, it can only be arbitrary in its enforcement. It's
    not enforced in an even handed manner.
        Some of the consequences for this are:

        (1) The diversion of resources toward prosecuting true
    crimes.
        (2) A weakening of respect for the rule of law, of course.
        (3) A loss of freedom. As sort of the default in society is
    you have to walk around on eggshells not knowing what is and is
    not allowed.

        Mr. Canaparo, I thought I'd throw out a few questions. You
    can address any of them. Then, if there's time, perhaps the
    others could weigh in as well. First, do you think it would
    make sense to say that we shouldn't have any further crimes
    that are issued by regulators as regulations and even those
    that currently exist perhaps should be reconsidered by
    Congress?
        Also, what principles should we consider in drawing the
    line between criminal and civil liability? What sorts of
    offenses are more appropriate for one and the other? Finally,
    are there due process issues that exist because of the nature
    of the criminal code as it now exists?
        Mr. Canaparo. Let me take the second, first, because it's
    the easiest one which is I would default to the traditions that
    we inherited from British common law and has been in American
    law forever which is that the criminal law is meant to be for
    those things which are morally reprehensible. That doesn't
    mean, of course, that accidents or sort of morally neutral
    things which impose harm don't get punished through civil
    remedies, right? As Professor Turley mentioned, to make those
    crimes fundamentally erode that difference and changes the
    nature of citizenship. That's question (2).
        (1) Let me get to, we've been touching on the counting and
    how we count and how we cut regulatory crimes, right? I think
    actually you can do both at the same time. What I would
    recommend is that you direct every agency and, again, probably
    not through the Department of Justice because this would be run
    through the Office of Legal Policy. They don't have the staff
    to do it.
        I would say probably direct every agency to send you a list
    of all the regulations which can be criminally enforced. If
    they don't do that, any that they don't send you are cut,
    voided immediately. Why this is good is because there's a ton
    of stuff the agencies have that they don't actually use, and
    they don't particularly need.
        What they'll do is they'll send you the stuff that they
    think is important. By virtue of what they don't send you, you
    can sort of say, OK, this was cheese kind of crimes. Those go
    away.
        Here are the ones that the agencies in their limited time
    and resources thought they are really important. Let's keep
    them. I would say in short tell the agencies, tell us what's
    important. Anything that doesn't show up on your list is voided
    immediately. You can sort of do both at the same time.
        Mr. Kiley. Thank you. I yield back.
        Mr. Biggs. The gentleman yields. The Chair recognizes the
    gentleman from Tennessee, Mr. Cohen.
        Mr. Cohen. Thank you, Mr. Chair. Mr. Fox, I'm just curious.
    I was listening to your testimony about Sacco and Vanzetti or
    whoever they were, Moore and Mitchell or--
        Mr. Fox. Moore and Mansell.
        Mr. Cohen. Yes, Moore and Mansell. What should've been the
    crime for cutting that NOAA apparatus apart?
        Mr. Fox. Yes, so going back to actually the point
    Congressman Kiley just made is I don't think it should be a
    crime. I think this is a thing--
        Mr. Cohen. It shouldn't be a crime to cut up something that
    you got nothing to do with? It's not your area of jurisdiction
    and to cut it and destroy it?
        Mr. Fox. Well, if they intended to do that, yes. Because
    they didn't, this is sort of a civil issue where the--I forget
    the person's name. The person who had the research project
    should take them to court and they should pay for the loss of
    the property that was damaged.
        I don't think it's the purview of the government to get
    involved and prosecute them for it. This goes back to the point
    of why mens rea matters. If they had gone in there intending to
    destroy it, yes, I think that's very different.
        Then, that probably would be appropriate to charge them and
    convict them of what happened. That's not the case here. It was
    a mistake. They thought they were saving some wildlife, saving
    some sharks. Inevitably, it was not poachers.
        Mr. Cohen. Just curious. I looked it up and I think it
    probably should be some type of offense to destroy something
    with no jurisdiction, and you don't make yourself the police
    and you make a mistake. They should've taken a deal or
    something, but regardless of that.
        Mr. Tolman, let me ask you a question. Your name was
    familiar to me, so I googled it for a long time. I didn't find
    any Tolmans that I would've known. Most of them were scientists
    and brilliant people like you. There was a Tolman Hall at
    Vanderbilt. That's where it came. Do you know Tolman Hall?
        Mr. Tolman. I do know the family. I tried to get into
    Vanderbilt Law School and was not admitted.
        Mr. Cohen. It's a good school and I'm sure--
        Mr. Tolman. Yes.
        Mr. Cohen. --that doesn't mean anything. It's a good
    school. Overcriminalization, a lot of that is Federal
    Congresspeople looking for issue du jour and passing laws that
    probably should be State laws. Is that not correct?
        Mr. Tolman. I wholeheartedly agree.
        Mr. Cohen. Years ago, when I was a State Senator, there was
    a group of Congresspeople that came down to Nashville and all
    talked about carjacking. They wanted to make it a Federal law.
    I suggested that it was more of a State responsibility, and
    they passed it, Federal law up here.
        Now, I don't know what it was. I read somewhere that
    there's a new carjacking law being proposed I think by Senator
    Blackburn. It changes the duty--the standard. Right now, you
    have to have an intent to murder or kill or do great injury to
    be a Federal crime and now they're reducing it to being--I
    forget what it is. Do you know what the difference is between
    this proposed law and the law that exists now?
        Mr. Tolman. I have seen that. I think the current
    carjacking law is an inappropriate Federal law. It should be
    the States. It is their primary role to enforce those laws.
    Sadly, the carjacking and I would also say the Hobbes Act cases
    which is in essence now the robbery of a Kentucky Fried
    Chicken, for example. This is an example of the headline of the
    day driving the lawmaking and expanding the Federal code.
        Mr. Cohen. Well, we'll have to look at that when the bill
    comes before our Committee to see how we respond to it because
    it's sometimes so easy to jump into something which is really
    State law.
        Mr. Tolman. Yes.
        Mr. Cohen. Mr. Fox, I was listening to your testimony. You
    were talking about respect for the law and all these laws, et
    cetera. Do you think that the pardoning people that attack
    policemen just makes people think less of the law?
        Mr. Fox. Yes, it's a case-by-case basis. I think the
    Federal justice system or even State justice systems really
    don't work well at all. There're obviously problems. Blanket
    pardoning people who violently attack police and try to
    overthrow the government, yes, that's wildly inappropriate.
        Mr. Cohen. Anybody think it was an appropriate thing to do
    to pardon all those 1,600 people en masse without going through
    them case by case? That creates a lot of people thinking it's
    who you know or what you do, et cetera, et cetera, and
    disrespect for the court system because it was nothing to do
    with the prosecutors doing wrong or anything like that. It was
    just a class of people that he decided to do it.
        Then there's been a lot of pardons lately. I don't know if
    you've kept up with them. Lots of folks in the crypto business
    who have been convicted, large monetary fines as well as jail
    time and tremendous amount of restitution and they've been
    pardoned. It happens.
        It used to be that Presidents had some shame. Even if they
    gave a pardon to their brother or to somebody that gave them a
    ton of money, they waited until the last minute and they could
    get out of town. Now, they put it on Truth Social and they
    parade it around and then they appoint them to be an ambassador
    somewhere. Thank you. I yield back the balance of my time.
        Mr. Biggs. The gentleman yields back. The Chair recognizes
    the Chair of the Committee, Mr. Jordan.
        Chair Jordan. Thank you, Mr. Chair. Mr. Canaparo, what was
    the number? How many crimes? It was, like--you had some number.
        Mr. Canaparo. In the U.S. code, we with reliable certainty
    estimated 5,199, but that's only the code.
        Chair Jordan. That's only the code. How many crimes are out
    there that aren't created by Congress but are created by the
    agencies?
        Mr. Canaparo. We don't know for sure, but the number is
    almost certainly between three and four hundred thousand.
        Chair Jordan. Americans can be charged with all kinds of
    crimes that they don't even know exist, that they don't even
    know they broke that were created by people they didn't elect.
    That's the situation we're in?
        Mr. Canaparo. Correct.
        Chair Jordan. Such a deal, right? Such a deal for America.
    This is how ridiculous. I'll give you a real-life example. The
    ATF out of thin air said something that they had even said was
    legal that had always been legal, said, ``we're going to now
    say pistol braces are illegal.''
        If you don't get rid of it, turn it in, destroy it,
    whatever, your property--if you don't do that, even though we
    told you it was fine years ago, even though there's nothing in
    the law that says it's a crime, you're going to be a felon.
    It's crazy. I want to thank the Chair for bringing this
    together.
        You cannot create a--talk about lack of respect for the
    citizens of this country. They don't even get a say in the
    people they elect on most of this stuff that they can get
    charged with which is crazy. How does that fit with our
    constitutional system, Professor Turley? I'll let you and Mr.
    Tolman talk a little here too. We appreciate you all being
    here.
        Mr. Turley. Well, it goes to what I mentioned earlier that
    the danger of overcriminalization is it can change what being a
    citizen is. If everyone is potentially criminal in conduct that
    they engage in every day, it changes the relationship to the
    government. By the way, it also has an impact on how people
    view real crime.
        If everyone is a presumptive felon, if everyone is a
    mattress tag puller, if everyone can be charged with the
    discretion of a prosecutor for things that most people do, then
    you lose the stigma, the clarity for the real crimes. That
    includes things like shoplifting. That is, you see the sort of
    casual attitude toward law breaking, but the government can be
    a terrible teacher in that respect by treating everything as
    potentially criminal.
        Then nothing is really criminal. It's just basically the
    government can either bring you into the criminal justice
    system or not based on a whim or discretion. That has an
    enormously corrosive impact on the meaning of being a citizen,
    the relationship of individuals to their State.
        Chair Jordan. It diminishes respect for the law in general.
    This may lead to less prosecution of real crime which Mr. Kiley
    just talked about. Then the thing that scares me as much as
    both of those is it encourages, I think, the weaponization of
    the government against people they don't like or who have a
    different political philosophy. We have seen all three of those
    things in the last few years which is, again, frightening and
    why this hearing is so important. Mr. Tolman, I'll go to you.
        Mr. Tolman. One thing to keep in mind about the 300,000-
    plus regulations that have criminal penalties, almost all those
    are white-collar crime. You're targeting a--you have the
    largest section of your criminal laws are actually targeting
    those that mostly likely have no criminal intent. That's why
    we're seeing such ability of prosecutors without any proper
    accountability to use that against everyday citizens that don't
    have criminal intent.
        Chair Jordan. Back to the mens rea. For at least that--
        Mr. Tolman. For at least.
        Chair Jordan. Yes, that would make sense. I'll give the
    Democrat witness which I normally don't do in hearings like
    this, I'll let you say something if you want, Mr. Fox.
        Mr. Fox. Yes. No, I agree. The whole idea is you have to
    actually intend to commit a crime. Just doing something,
    thinking you're trying to help someone like saving a bunch of
    sharks from poachers, or there's another case where it was a
    man who was hiking on a mountain.
        He was a professional runner. Went up what, unbeknownst to
    him, was a closed trail and had two tiny little signs. Now,
    he's battling Federal charges. There's another case, Lesh v.
    United States, is pending in front of the Supreme Court which
    was a snowmobiler who was charged for taking pictures
    advertising his business which is not what he was doing, but
    that's what they allege while he was on Federal land.
        In a case like that because the max penalty is six months
    in jail, according to the Supreme Court despite that there's no
    textual basis in the Constitution or historical basis at all,
    he doesn't even get a right to a jury trial at all. This is
    just government, like, you did something you didn't know was a
    crime. Now, you're guilty. Not only that, but, of course,
    Congress never even passed these laws.
        Chair Jordan. Yes, it'd be one thing to shake them down,
    but they're going to shake them down and put them in jail
    potentially. It's crazy. Mr. Chair, thank you for this good
    hearing. I yield back.
        Mr. Biggs. Thank you.
        Mr. Raskin. Mr. Chair, I just have a UC request.
        Mr. Biggs. Please.
        Mr. Raskin. This is the Federal Justice Statistics for
    2023. Very interest, 57,000 arrests and 184 of them were for
    regulatory arrests or 0.2 percent. That may be too high given
    what was done. So, anyway, for the record.
        Mr. Biggs. Without objection. The Chair recognizes the
    gentleman from New York, Mr. Goldman.
        Mr. Goldman. Thank you, Mr. Chair. Mr. Turley, it's good to
    see you again. You are a frequent witness for a variety of
    different hearings for the Republicans. In fact, you testified
    in the last Congress related to an impeachment investigation.
        As I recall, you testified that you believed that the
    Republican investigation related to Hunter Biden's private
    foreign investments did merit an impeachment investigation
    against President Biden, I guess, based on alleged meetings
    that the President had with Hunter's business partners even
    though there was never any evidence presented that they
    discussed Hunter's businesses, business ventures, or that the
    President ever financially benefited from those ventures. Is
    that generally an accurate assessment? You didn't call for
    impeachment? You just suggested there should be an
    investigation, right?
        Mr. Turley. The purpose of that hearing was to determine
    whether there could be an impeachment inquiry and whether--
        Mr. Goldman. I'm just asking what you testified.
        Mr. Turley. I'm trying to say that--
        Mr. Goldman. No, did you say directly that there was a
    legitimate basis to move forward with an impeachment
    investigation?
        Mr. Turley. What I said is that if those allegations were
    proven, they could amount to impeachable offenses.
        Mr. Goldman. All right. Well, let's focus for a second on
    some conduct that's been going on over the last few months.
    Related to World Liberty Financial, are you familiar with that
    company?
        Mr. Turley. No.
        Mr. Goldman. You're not familiar? OK. Are you familiar at
    all with Donald Trump's interest in cryptocurrency?
        Mr. Turley. No.
        Mr. Goldman. You're not familiar with the fact that Donald
    Trump issued a memecoin two or three days before his
    inauguration?
        Mr. Turley. I saw something of that in the press, but I'm
    not that familiar with it.
        Mr. Goldman. OK. Well, let's hypothetically--it's not
    hypothetical. It's true. Donald Trump has a financial interest
    in a memecoin named after himself. He recently offered a VIP
    White House tour and special reception to the memecoin's 25
    biggest holders. After that announcement, the coin surged more
    than 50 percent. Does that seem like something that warrants
    investigation to you, Mr. Turley?
        Mr. Turley. Well, there's no question you can investigate
    that to see if there was any criminal conduct. I want to
    distinguish between that and the influence peddling scandal
    that the hearing was about in the Biden Administration.
        Mr. Goldman. I'm not talking about that hearing, and I know
    you like to filibuster, Mr. Turley. No, no. I'm happy to talk
    about that hearing. It was the biggest joke of an
    investigation. It was embarrassing that you call yourself a
    credible criminal professor that you would actually think that
    there was any evidence that warranted an investigation.
        I'm focusing right now because it will seem to me if you
    have any credibility, you will agree that auctioning off a
    White House tour for the highest investors in your own company
    would warrant either impeachment or criminal investigation. Let
    me move on because it gets worse. The President is a
    significant financial beneficiary of a company called World
    Liberty Financial which issues a stablecoin. Are you familiar
    with stablecoins?
        Mr. Turley. I'm not.
        Mr. Goldman. OK. Stablecoin is essentially a digital
    version of a dollar that can be used in transactions. Recently,
    the World Liberty, this organization which Donald Trump is a
    beneficiary of, entered into a deal with a UAE backed company
    that would complete a two-billion dollar transaction with a
    company that has previously admitted to engaging in money
    laundering. Donald Trump's company will now generate tens to
    hundreds of millions of dollars in revenue from that
    transaction with a foreign government.
        I'm sure you're familiar with the foreign emoluments
    clause, Mr. Turley. Would you say that based on that
    information since apparently you only follow Hunter Biden's
    finances and not President Trump's, would you say that based on
    me providing you with that information that this would warrant
    an impeachment investigation?
        Mr. Turley. Congressman, you say that we have to preserve
    our credibility. I think you would agree--
        Mr. Goldman. Can you answer the question, sir?
        Mr. Biggs. He's trying to answer the question. Your time
    has expired. I will allow the gentleman to answer the question.
        Mr. Turley. Thanks. In the interest of credibility cited by
    the Member, I'm not going to rely on the facts that you just
    gave me for the first time to render a judgment. I'm not
    opposed to investigations of alleged corruption. That was the
    point of the previous hearing.
        The way to establish credibility is not, as you did, sir,
    just engage in personality attacks and personal innuendos. I'm
    happy to speak with you and to work with you about anything
    dealing with corruption in this building. I've been writing
    about that for three decades. I've been called as a witness for
    both the Democrats and Republicans dealing with that. The way
    to--
        Mr. Goldman. Well, I've only seen you as a witness for the
    Republicans.
        Mr. Biggs. Your time is expired, sir. Your time is expired.
        Mr. Goldman. I'm happy to yield back.
        Mr. Biggs. Did you finish your answer?
        Mr. Turley. The way that we can actually regain--
        Mr. Goldman. I thought my time is expired.
        Mr. Biggs. Your time is expired. I said your time is
    expired. He gets an opportunity to finish answering the
    question.
        Mr. Goldman. I would like to reclaim my time--
        Mr. Biggs. You have no additional time. You are out of
    order. Be quiet.
        Mr. Goldman. He's answering my question.
        Mr. Biggs. You are out of order.
        Mr. Goldman. I would like to reclaim my time.
        Mr. Biggs. You cannot--no. He's answering the question
    because you personally attacked him. I said he could answer the
    question. I give that courtesy.
        Mr. Goldman. How did I personally attack him, Mr. Chair?
        Mr. Biggs. You attacked his credibility. We're not going to
    get into--
        Mr. Goldman. That's not a personal attack.
        Mr. Biggs. We're not getting into this right now.
        Mr. Goldman. Your witness, his credibility matters, sir.
        Mr. Biggs. You are out of order. You are out of order.
    You're done. You can't say anything else right now. You may
    finish answering your question.
        Mr. Turley. Thank you, Mr. Chair. I think that the one
    lesson from this exchange is that it's possible that we can
    restore credibility in this institution if we could just get
    beyond personal attacks.
        Mr. Goldman. There were no personal attacks, Mr. Turley.
    You are a witness.
        Mr. Biggs. You're done.
        Mr. Goldman. Your credibility matters.
        Mr. Biggs. You, sir, have lost your credibility with me. I
    gave that courtesy to everyone on this bench.
        Mr. Goldman. Mr. Chair--
        Mr. Biggs. You ask a question. If they wanted to continue
    to answer beyond the time limit, I said, ``time's expired. You
    may answer the question.'' That's my routine. That's what I did
    today. You challenged him, asked him a question. You wanted an
    answer. Your time is expired. He is answering the question.
        Mr. Goldman. Mr. Chair, I have a parliamentary inquiry.
        Mr. Biggs. You don't like his--you don't like--you don't
    like his answer. Because you don't like his answer--
        Mr. Goldman. I have a parliamentary inquiry.
        Mr. Biggs. --you want to shut him up. What's your inquiry?
        Mr. Goldman. My inquiry is when you offered--when my time
    was up at zero, zero for him to answer the question, he went
    and answered the question. You then gaveled and said my time
    was up.
        Mr. Biggs. No. That's not a parliamentary inquiry.
        Mr. Goldman. You gaveled and said my time was up.
        Mr. Biggs. That's not a parliamentary inquiry.
        Mr. Goldman. I would like to know when--
        Mr. Biggs. That's not a parliamentary inquiry.
        Mr. Goldman. --my time is up and when he gets to continue
    answering my question.
        Mr. Biggs. That is not a parliamentary inquiry. Your
    parliamentarian is about to tell you that's not a parliamentary
    inquiry.
        Mr. Goldman. He actually disagrees. He thinks it is a
    parliamentary inquiry.
        Mr. Biggs. That's not a parliamentary inquiry.
        Mr. Goldman. Why? I'm asking for the process question, the
    parliamentary--the process question as to when my time is up
    which you allowed him to answer the question. You then gaveled
    and said my time is expired. Then you offered him to answer the
    question again which he already had done.
        Mr. Biggs. No, sir. If we were to watch--
        Mr. Goldman. You did it based on accusations--
        Mr. Biggs. Excuse me. Excuse me. Excuse me.
        Mr. Goldman. --that I was personally attacking him which I
    was not.
        Mr. Biggs. Excuse me. Not only are you out of order, but
    you're being incredibly rude. Here's the deal. I gave everyone
    the same courtesy. You didn't like where he was going. You
    began interrupting again, but your time was expired. He was
    trying to answer the question. You didn't like the answer.
        Mr. Goldman. That is false. I'm happy to have his answer.
        Mr. Biggs. No, no, no. That's what happened.
        Mr. Goldman. I didn't like the accusation--
        Mr. Biggs. That's what happened.
        Mr. Goldman. --that I was personally attacking him. His
    credibility is relevant.
        Mr. Biggs. I didn't say that until the third round when you
    interrupted.
        Mr. Goldman. His credibility is relevant.
        Mr. Biggs. You continue to interrupt. You continue to be
    out of order.
        Mr. Goldman. Then, I asked you, sir--
        Mr. Biggs. You are out of order.
        Mr. Goldman. I asked you, what am I personally attacking?
    You said, his credibility and he is a witness. His credibility
    matters.
        Mr. Biggs. You're out of order. You are so far out of
    order--
        Mr. Goldman. You are not conducting this in a fair and
    equitable way because--
        Mr. Biggs. Sure I am. Everybody got the same courtesy. You
    asked a question. They're going to finish answering. Everybody
    got that same courtesy. You interrupted him while he was giving
    the answer. That's why you got gaveled.
        Mr. Goldman. Then you said my time--
        Mr. Biggs. You got interrupted. You interrupted--
        Mr. Goldman. --is up which is when you would go to the next
    person.
        Mr. Biggs. I gave the same courtesy to every Member on your
    side of the aisle as I did over here, when your time was
    expired, five minutes expired. If they were in the middle of
    answering the question, I let it go. Now, we can talk about
    that round and round all you want. That's what I did. That's
    what I do.
        Mr. Goldman. Well, I look forward to you continuing to do
    that.
        Mr. Biggs. That's what's happening--yes, well, good. I look
    forward to you being in order next time. Mr. Turley, you may
    continue to answer the question that he so much doesn't want to
    hear.
        Mr. Turley. I've never been so certain in saying I'm happy
    to move on.
        Mr. Biggs. Very good. Thank you. Now, I'll yield to myself,
    five minutes, and we'll go through this. Mr. Canaparo, you
    talked about something I thought was very interesting and that
    was trying to resolve the agency overcriminalization. What you
    said what we could do is put something forward where the agency
    would actually reduce the number of crimes that they have,
    determine what they actually have to have, and then, excuse me,
    all the rest would be avoided. Can you expand on that?
        Mr. Canaparo. Sure. That given the sheer number of such
    crimes that are on the books, that's probably the best way to
    proceed. If you ask them just to say--maybe through the
    Department of Justice, for instance, just say, gives us the
    list of all the regulatory crimes. I fear that what would
    probably happen is that you would not get a list. It may
    actually be impossible.
        What I think the better solution would be do is to say to
    the agencies directly, all agencies that have any sort of
    criminal enforcement regulations or criminal enforcement
    authority, you must by a specific date give us the list of all
    of them. Any that you have which are not in that list are
    immediately voided so that if the next year they try to
    prosecute somebody with one of these arcane regs, that person
    could say, I have a defense that has been voided by this
    statute. That's probably the most efficient way to both count
    and cut at the same time. Because my fear is that if you just
    try to count, you won't actually ever get a number.
        Mr. Biggs. I don't disagree with that. Professor Turley,
    you said you wanted wall in prosecutorial discretion because
    that seems to be a problem. I would suggest to you that a
    blanket mens rea statute might do that. Do you have any other
    ideas on how to wall in the prosecution?
        Mr. Turley. Well, we have two sets of criminal laws that
    we've been discussing. One is the most direct which is in the
    criminal code for laws passed by Congress. Then, we have this
    massive unknown body really of agency crimes that were
    basically written by the agencies.
        That's why we don't have really any walls. There are no
    walls. It basically is almost--it covers the same expanse as
    civil conduct. You can't have an illegal system like that
    without fundamental problems for citizens.
        The idea is that prosecutor discretion is supposed to exist
    within a walled space where you define that space. This is the
    specific conduct. You're absolutely right. If that space is
    defined by mens rea, then prosecutorial discretion really,
    really works quite well.
        I want to say that I really am intrigued by Mr. Canaparo's
    idea that you can ask the agencies what are the crimes that you
    are enforcing, and just presume that everything that they don't
    mention is obviously a crime that's not that important to them.
    We're going to have to engage in sort of categorical
    elimination. You're talking about hundreds of thousands of
    crimes. You're going to have to find some way to make deep and
    serious cuts. The agency is going to actually give you the map
    for that.
        Mr. Biggs. Mr. Fox, while not explicitly mentioned in your
    written testimony, you've written about the trial penalty in
    the past. Can you briefly explain why one of the problems we're
    talking about today, too many laws in the books, contributes to
    the perpetuation of the trial penalty?
        Mr. Fox. Yes, absolutely. Thank you, Mr. Chair. The trial
    penalty is the difference in the sentence that you're offered
    at a plea stage and what you would get post-trial. In theory,
    it should be the same because if it's not the same, there's
    something changing there.
        There's a number of ways that prosecutors can coerce people
    into pleading guilty. Someone mentioned charge stacking. That's
    just filing multiple charges. They can threaten family members,
    threaten to re-indict as a habitual offender, use pretrial
    detection.
        When I was a public defender, I had clients who would be
    offered plea deals that they could walk home that very moment
    while the prosecutors were arguing that they were a danger to
    the community and needed to be held on a bond if they were
    going to go to trial. Obviously, those two things cannot
    simultaneously be true. That's another way that they frequently
    do that.
        They've even been able to threaten to impose the death
    penalty against people just to get them to plead guilty. When
    you have things like mandatory minimums that tie judges' hands,
    so if they go to trial and are convicted, there's nothing the
    judge can do but impose the sentence that he or she is bound to
    impose. Then absent juries who are able to ask questions, like,
    what would the sentence be if I convicted or is this something
    that I think is appropriate as a member of the community to
    prosecute someone for, they're sort of--prosecutors have
    unbridled discretion.
        I will say I also wrote recently there's two Federal
    judges, Judge John Kane in Colorado, Judge Jed Rakoff in New
    York, both of which Judge Rakoff actually said that the point
    reduction for accepting responsibility is unconstitutional.
    Judge Kane said that he will not apply it for the same reason.
    The argument basically is you're getting a reduction in
    sentence because you're pleading guilty.
        That undermines your Sixth Amendment right to a jury trial.
    The right to a jury trial is the only right that exists twice
    in the Constitution. It's both in Article 3 and in the Sixth
    Amendment. Really judges need to aggressively police plea
    bargains and not just blanketly do whatever prosecutors ask
    them to do.
        Mr. Biggs. Thank you. Thanks for that. Thanks to our
    witnesses for being here today. It was kind of fun until the
    end, right?
        [Laughter.]
        Mr. Biggs. We appreciate you being here and your testimony.
    We will adjourn this meeting.
        [Whereupon, at 3:40 p.m., the Subcommittee was adjourned.]

        All materials submitted for the record by Members of the
    Subcommittee on Crime and Federal Government Surveillance can
    be found at: https://docs.house.gov/Committee/Calendar/ByEvent
    .aspx?EventID=118207.

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