Author: Carissa Hessick

Law Professor at the University of North Carolina Director of the Prosecutors and Politics Project

Re-posting “A Bit of History on the Presumption of Regularity”

The presumption of regularity gained some notoriety during the first Trump administration, prompting me to write a Prawfs post in January 2019 about the presumption. The post was based on some old research that I had done into the origins of the modern doctrine–research which revealed very little in the way of a doctrinal foundation–that had been cut from an old research project.

Now, in the second Trump administration, the presumption of regularity is once more a topic of keen interest. Just this morning, the New York Times published an article about how federal judges across the country have suggested that the government may no longer be entitled to the presumption because of deceptive practices by DOJ in court.

Because the TypePad version of PrawfsBlawg is now defunct, my original post is not longer available. Happily, the Florida Law Review appears to have created a permalink version of the post, available here, for an article by Aram Gavoor and Steven Platt on the presumption. I’m also re-posting the original post below so that it is also available here on Prawfs.

Monday, January 14, 2019

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling — most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Armstrong cites United States v. Chemical Foundation, a 1926 Supreme Court case, as support for the presumption of regularity.  But that case doesn’t seem to provide a particularly sound foundation for the presumption—at least not for the presumption as it is currently invoked by the Court.

In Chemical Foundation, the United States sued to invalidate the sale of foreign patents to Chemical Foundation.  The government had seized the patents pursuant to the Trading with the Enemy Act of 1917, and the President had delegated the power to sell the patents to Frank Polk, who was a counselor for the Department of State.  Polk then ordered the sale of various patents to the Chemical Foundation.  The United States subsequently sought to invalidate the sale, alleging that Polk’s decision to sell was “induced by misrepresentation and [was] made without knowledge of the material facts.”  The government lost at trial, with the lower court finding that the U.S. had “failed to establish any conspiracy, fraud or deception alleged.”  The Supreme Court declined to disturb the factual findings of the lower court, because they were not clearly erroneous.

I assume the Supreme Court could have disposed of Chemical Foundation on this limited ground—namely, that the government had failed to meet its factual burden.  But the Supreme Court went on to state:

The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the courts.

The Chemical Foundation Court cited three other cases in support of the presumption.  None of those cases referenced a presumption of regularity.  Nor do any of those cases reveal where the Chemical Foundation Court located authority for the presumption or what it thought the contours of that presumption to be.  And, most important, none supports the presumption as it was expressed and applied in Armstrong.

The first of these cases, The Confiscation Cases, involved a seizure that the President was authorized by Congress to make, but was actually made by a marshal acting on directions by the district attorney, who was in turn acting at the request of the Attorney General.  The cited portion of the opinion states that, because the statute authorized only the President to make the seizure, “a direction given by the Attorney-General to seize property liable to confiscation under the act of Congress must be regarded as a direction given by the President.”  The Court suggested that this holding was related to a previous decision that “the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.”  It is possible that the Chemical Foundation Court relied on The Confiscation Cases for the proposition that the Attorney General is presumed to act at the request of the President.  But the Chemical Foundation Court did not provide this (or any other) explanation.

The second case cited by Chemical Foundation is United States v. Page. That case involved a requirement that the result of all court-martial proceedings were to be signed by the President.  In Page, that requirement had not been technically satisfied.  The Secretary of War testified that he had forwarded the proceedings to the President, but the Secretary, rather than the President, had signed the copy of the proceedings. Nevertheless, the Court refused to dismiss the court-martial charge.  It stated that “where the record discloses that the proceedings have been laid before the president for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the secretary by whom they are authenticated: and this must be the result here.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that, if the Secretary of War said he forwarded something to the President for approval, that statement ought to be presumed correct.  But that is hardly the only possible way to read this case.

The final case, United States v. Nix, involved a dispute over the travel fees of a marshal to serve arrest warrants.  The marshal claimed travel not only for miles that he traveled, but also for miles traveled by his deputies.  The deputies were not available for testimony or depositions to verify the miles they traveled.  But the marshal was able to show that “his accounts” of the miles traveled by his deputies “had been allowed by the district judge.”  The Court deemed this decision by the district judge “prima facie evidence of the correctness of the items of that account” that “was sufficient to place upon the government the burden of showing any error of fact in his account.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that the official accounting of the marshal ought to be presumed correct.  But it is difficult to tell what, precisely, was entitled to the presumption—the representation of the marshal, or the fact that the lower court found the representation credible.  In short, this line of precedent hardly provides a solid foundation for the presumption.

Although Armstrong was a criminal case, the presumption is not limited to criminal prosecutors.  Many Supreme Court cases discussing the presumption are unrelated to the criminal justice system.  For example, in National Archives and Records Administartion v. Favish, the Court referenced the presumption in creating a higher threshold showing for disclosure in certain FOIA cases.  The Court stated: “[T]here is a presumption of legitimacy accorded to the Government’s official conduct. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it.”

But, as with the cases applying the presumption to decisions by prosecutors, these other cases tend to make only brief reference to the presumption, sometimes including little more than citations to previous cases, which themselves made only brief reference to the presumption.  Indeed, a case that has long been associated with the presumption of regularity afforded to administrative agencies—Citizens to Preserve Overton Park v. Volpe—states only: “Certainly, the Secretary’s decision is entitled to a presumption of regularity. But that presumption is not to shield his action from a thorough, probing, in-depth review.”

Although the Supreme Court has not made the connection explicit, one suspects that the presumption of regularity afforded to prosecutors is related to the ancient maxim “Omnia praesumuntur rite esse acta,” which roughly translated means “All things are presumed to have been done rightly.”  The maxim is sometimes recounted as “Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium”—that is, “All things are presumed to have been done rightly and with due formality unless it is proved to the contrary.”  Recent cases involving the presumption of regularity do not invoke the maxim, but some older opinions do.  Justice Story invoked the maxim in Bank of U.S. v. Dandridge, stating:

[The law] presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie’s late valuable Treatise on Evidence.

As the excerpt from Justice Story’s opinion indicates, the presumption had a number of iterations.  But it also indicates that the presumption of regularity is not limited to executive officials—or even public officials; instead, it applies to everyone.  It is an evidentiary presumption that people act appropriately—an presumption that the party claiming otherwise bears the burden to disprove.

So how on earth did a presumption that applies to everyone and merely sets a burden of proof transform to shield prosecutors from discovery?  I’m not sure.  But I imagine that it is attributable, at least in part, to the fact that the courts do not want to be inundated with cases challenging executive action.  And I imagine that it is also related to the fact that the post-Warren Court has (at least at times) made a big show out of not interfering in the business of the political branches.

In any event, I think that it is worth noting the shaky foundations of the modern presumption of regularity.  History shows that it is an evidentiary presumption that applied to public and private actors alike; it was used to allocate burdens of proof, not to prevent discovery or to insulate executive action from judicial review. 

Posted by Carissa Byrne Hessick on January 14, 2019 at 07:06 AM

The Persistence of (High Priced!) Traditional Casebooks

This is a guest post from Jeff Bellin, the Lee S. and Charles A. Speir Chair in Law at Vanderbilt

A recent social media post listing the annual revenue of major academic publishers (spoiler alert: gargantuan!) reminded me of an issue that gets surprisingly little attention given its importance to legal education: casebook selection. I have a forthcoming symposium essay on this topic: The High Cost of Law School Casebooks which starts with an economic puzzle:

  • Low-cost, self-published casebooks are increasingly available. (Check out this great list organized by subject matter for options in your field!)
    • High-priced commercial casebooks continue to dominate. 

The essay offers some explanations:

  • “Safe” Selection The most important casebook selection moment occurs early in a professor’s career when they are incentivized to select the “safest” casebooks, generally the book they used in law school (i.e., Harvard or Yale) and/or used or authored by their mentors and colleagues. These books are typically “published by the handful of established academic presses who set the highest prices.”
  • Market Distortion “[T]he people who pay for the books (students) are different from the people who choose the books (professors). And the people who set the price (publishers) are different still.” Professors may not even be aware of the high costs and pricing models, with many books now priced over $300 and publishers offering enhanced casebooks at even higher prices.
  • Quality Matters Most Casebooks are tremendously important to a course (and a field) and that means quality, not price or even value, is the deciding factor: “A casebook’s merits should be the most important selection criterion.”
  • Casebook Selection Inertia Initial choices are sticky, determining not just the adopter’s choice for years to come but also the choices of those who follow their path. “[C]asebook selections are strongly influenced by the casebook selections of the past.”

The Essay concludes by emphasizing that since quality, and especially the perception of quality – becoming the “safe choice” – is the key to broad adoption, free casebooks are not the solution and could even cause new problems.

“[A]uthoring a great casebook is hard, ongoing work—unfolding over decades—especially if one self-publishes the book, which is currently the only viable route to a low price. Casebooks require regular updates and new editions. Someone needs to send out review copies and respond to accommodation requests. There is endless checking for and fixing errors and reviewing proofs. Proofs themselves cost money. It is possible that some professors will take this on as a pure public service. But professors are people. And people respond to incentives. If we want the most experienced and insightful law professors to author great low-cost casebooks, we should incentivize them. One possibility is that law schools could meaningfully reward casebook authorship, but until that occurs, the broad spread between casebook costs and price leaves room for an alternative incentive: a modest royalty…. Law school casebooks should not cost $300. But they also cannot (sustainably) be free.”

Curious to hear others’ thoughts via email or comments. 

Full disclosure: My interest in this topic arose from authoring a widely adopted ($35) Evidence casebook and a less-widely-adopted-but-still-great ($35) Criminal Procedure: Investigations casebook.

What does it mean to “impede” ICE agents?

A number of videos from Minnesota and elsewhere in the United States show immigration officials from ICE and Border Patrol threatening to arrest civilians for “impeding” their enforcement activities.  Sometimes agents will cite a particular federal law in these videos, 18 U.S.C. § 111.  That statute does, in fact, criminalize certain actions that can interfere with federal officials’ duties.  Some immigration officials think that the statute allows them to arrest people who are following them, recording them, or simply not following their instructions.  But there’s good reason to think that those officials are wrong.

Let’s start (as we inevitably must) with the text of the statute.  Among other things, section 111 prohibits:  “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties.”  (ICE and Border Patrol agents who are engaged in immigration enforcement are covered by this law.)

The video imbedded in this news account from Maine shows immigration officials telling a citizen that merely following them qualifies as “impeding,” and that they would arrest him if he didn’t stop following them.  It’s surprising that the officers would say this because the ordinary meaning of the word “impede” is to make it more difficult for something to happen or more difficult for someone to do something.  It would certainly be annoying to have someone follow me around. But it would not prevent me from doing anything.  The same goes for recording.  I might not want to be recorded, but the recording itself doesn’t make it difficult to go about my daily life.

The statutory problems go beyond the fact that these officers seem to be using the word “impede” incorrectly.  They are also ignoring the word “forcibly.”  A number of federal courts have interpreted the word “forcibly” in section 111 to modify all of the verbs that come after it, not merely the verb “assault.”  United States v. Brown, 125 F.4th 1186, 1209 (D.C. Cir. 2025) is one recent example of a court adopting this reading of the statute.  But there are plenty of others.  In fact, I haven’t found any federal appellate court interpretation that fails to read “forcibly” as applying to all of the prohibited actions, though it’s certainly possible that I missed one.

Is following federal officials around, recording them, or refusing to follow their orders examples of “forcibly” impeding those officials?  Not in Minnesota, which is part of the Eight Circuit.  In a 1993 decision, the Eight Circuit held that “[f]orce is a necessary element of any § 111 violation,” and that the element of force “may be satisfied by proof of actual physical contact, or by proof of ‘such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death.’”  United States v. Schrader, 10 F.3d 1345, 1348 (8th Cir. 1993) (quoting United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987)).  There’s no reasonable argument to be made that a person who is following ICE agents around in a personal car, recording them, and who doesn’t stop doing these things when threatened has engaged in “forcible” behavior.  So any detentions or arrests that ICE and Border Patrol make in Minneapolis on those grounds are illegal.

What about actions by immigration officials outside of the Eighth Circuit?  The video I mention above, for example, is from Maine, where officials appear to be showing up at people’s houses to tell them that following agents is a crime.  Maine is in the First Circuit, not the Eighth.

What conduct is sufficient to violate section 111 depends on the circuits.  Some circuits have a pretty narrow interpretation of the law; they require that a person’s actions rise to the level of a simple assault—which following and recording do not—in order to violate section 111.  But other circuits don’t, and the Supreme Court so far has declined to resolve that split. 

In sum, to the extent that ICE and Border Patrol claim that following them or recording them violates section 111, they seem to be wrong.  Perhaps they need to update the “legal refresher” for immigration officials.

The Potential Indictment of James Comey

Reports are swirling that federal prosecutors are attempting to indict James Comey.  While the precise details are unclear, it appears that the potential criminal charges are related to Congressional testimony that Comey gave in September 2020 and allegations that the testimony was false.

Much of the reporting on the potential charges focuses on President Trump’s grievances against Comey and his personal involvement in the decision to prosecute. But there are other issues—legal issues—that a Comey indictment raises.

One such issue is whether charges against Comey are supported by probable cause.  According to media reports, federal prosecutors sent a detailed memo explaining that probable cause does not exist to Lindsey Halligan, the new U.S. attorney for the Eastern District of Virginia.  Probable cause is the amount of evidence necessary to bring criminal charges—both as a matter of constitutional law and as a matter of legal ethics.  Despite this memo, the media is reporting that Halligan intends to present the case to a grand jury in the hopes of securing an indictment.

Another looming legal issue is the extent to which these threatened charges are an example of a broader, structural problem in American criminal law—unchecked prosecutorial discretion.  As I wrote for PrawfsBlawg more than two years ago:

[P]rosecutorial discretion sits uneasily with our commitment to the principle of equal treatment under the law.  As a country, we have enacted broadly written criminal statutes, which delegate enormous enforcement authority to prosecutors.  And we have not created any mechanisms to provide transparency into how that authority is exercised.  We know that prosecutors routinely decline to bring charges when they have probable cause that a crime has been committed, and yet we do not know much of anything about how they use that power.

I wrote those words when Manhattan DA Alvin Bragg secured an indictment of Donald Trump for the Stormy Daniels payments, noting that: “The indictment of a former president (and current candidate for the office) was always going to be a political firestorm.  But our failure to grapple with the black box of prosecutorial discretion only adds fuel to the fire.”

 Unfortunately, nothing has changed.

New Data on Criminal Law Legislation in the States

In honor of our new Prawfs home here at WordPress, I thought I’d post about some research that we just released at the  Prosecutors and Politics Project.  We studied legislation introduced in every state legislature over a four-year period to determine how state lawmakers change their substantive criminal laws and their punishments.  Our new report shows that state lawmakers are much more interested in making criminal law more punitive than in making it more lenient. Legislation that would have expanded the scope of substantive criminal law or increased punishment was introduced at a rate 3.5 times higher than legislation that would have contracted the scope of substantive criminal law or decreased punishment. 

While punitive legislation was introduced far more often, lenient legislation was more likely to pass. Only 16% of bills that increased criminal law or punishment passed, as compared to a pass rate of 20% for bills that decreased criminal law or punishment. Interestingly, mixed bills—that is, bills that both increased criminal law or punishment and also decreased criminal law or punishment—passed at the highest rate—31%.  

When it comes to party control, we found that punitive legislation was popular in both red states and blue states.  That is not to say that partisan politics are irrelevant.  Our colleagues in the Political Science Department here at UNC conducted a statistical analysis of the data, which revealed that Republican-controlled legislatures are significantly more likely to pass punitive legislation.  But Democratic-controlled legislatures still passed many punitive bills.

These partisanship findings are consistent with public opinion data.  Most Americans believe crime is a “major problem” in the country’s large cities.  Republican voters and politicians are not the only people who care about public safety.  According to a recent poll, more than three-quarters of Americans hold this view, including 96% of Republicans and 68% of Democrats. 

When we dug deeper into the subject of these criminal laws, our findings didn’t always match our expectations.  We were not surprised to find that Republican-controlled states passed more punitive legislation—after all, the Republican party has long been seen as the law-and-order party.  But the GOP also has a significant history of raising concerns about expanding government.  Small-government sensibilities led the party to speak out against “overcriminalization” in its 2012 platform, which singled out the expansion of criminal law associated with the agency regulations for criticism.  Concern among conservatives about the administrative state’s expansion of criminal law has not faded.  Earlier this year, a fellow at the Heritage Foundation testified before Congress about overcriminalization, specifically criticizing the practice of elevating regulatory infractions into federal crimes.  Yet our study found that Republican-led states introduced and passed more bills expanding the number of regulatory crimes than states controlled by Democrats.

It is, perhaps, unsurprising that laws creating new crimes, expanding old crimes, and increasing punishments are so popular.  They allow state lawmakers to signal to their constituents that they take their concerns about crime and disorder seriously.  The report showed that many bills targeted the street-level crimes that loom large in the debate over crime policy.  The most popular topics were guns, sex offenses, assaults, and drugs.

But while these may be popular bills to pass, there is little reason to think that these laws are actually effective in reducing crime.  Sex offenses, assaults, and drugs are already illegal, and increasing punishments is unlikely to discourage more people from committing those crimes.  There is a mountain of social science evidence making clear that increasing punishments is far less effective at deterring crime than increasing the chances that someone who commits a crime will be caught.

Unfortunately, helping law enforcement solve more cases is significantly more expensive than tinkering with the criminal law.  Hiring police officers, collecting more DNA samples, and testing those samples all cost money.  In contrast, passing a bill to create a new type of aggravated assault or to increase the penalties associated with drug trafficking is essentially free—at least in the short term.  Once those longer sentences increase the prison population, then states find themselves scrambling to either cover the costs of building new prisons or begin releasing inmates.

It makes sense that state lawmakers would want to respond to their constituent’s concerns using methods that are, at least initially, inexpensive.  Especially in light of the current financial uncertainty, states may not have the luxury of spending large amounts of money on expensive tactics to combat crime. 

Happily, lawmakers do not need to choose between expensive efforts to catch more criminals and inexpensive, but ineffective changes to criminal law and punishment.  There are several relatively low-cost interventions that have proven effective at reducing crime.  For example, lawmakers can pass laws to facilitate electronic banking so that it reaches less affluent areas.  This will help to reduce crime because, when fewer transactions are conducted in cash, crime rates drop.  They can also consider making daylight savings time permanent.  Research shows that the extra hour of daylight translates into a measurable drop in robbery rates, as it allows more people to return safely to their homes after work without incident.

More generally, state lawmakers can partner with academics, nonprofit organizations, and other experts to identify more creative methods to combat crime.  As the University of Chicago’s John Roman recently said: “The key lesson from the crime decline of the 1990s is that the most effective crime-fighting tools were not explicitly about fighting crime through the justice system.”

State lawmakers might worry that pursuing these innovative crime prevention tools would be unpopular.  According to a 2023 Gallup poll, a majority of Americans think it is more important for the criminal justice system to strengthen law and order through more police and greater enforcement of the laws than it is to reduce bias against racial minorities in the criminal justice system.  But when asked which approaches to lowering the crime rate, nearly two-thirds of Americans say they prefer directing money and effort to addressing social and economic problems.  Only 35% said they would rather direct money and effort to strengthening law enforcement.

For those of you who are interested in learning more about our findings and hearing from folks who are in the trenches, working with state lawmakers to pass (or defeat) criminal-law-related bills, we will be hosting a webinar in a few weeks.  More details and registration can be found here.  I’ll be moderating, and I plan to leave time for Q&A, so I hope many of you can attend!