Did you know that title seven of the United States Code
Section 8313(A)1(B) allows for a five-year sentence in the federal slammer for selling llama poop?
Are you aware that Title 21 Part 139 of the Code of Federal Regulations
prohibits the sale of improperly shaped spaghetti noodles?
Or that the swine Health Protection Act forbids the feeding of garbage to a pig
unless said garbage has been cooked by a garbage cooker who holds a garbage cooking permit?
You didn't know any of these things
but that's because you're not Mike Chase. Criminal defense attorney and author of the new book,
"How to Become a Federal Criminal", an illustrated handbook for the aspiring offender.
Perhaps the world's foremost expert on vague and dumb laws, the man behind the @CrimeADay twitter handle,
has scoured through countless criminal statutes and codes
in order to demonstrate the power of the federal government at its most absurd.
I sat down with chase to learn the roots of his obsession with laws against improperly shaped cheese,
whistling on a CB radio, and making unreasonable gestures to a passing horse.
"How to Become a Federal Criminal" is sort of the desk guide to all of the most
arcane and ridiculous federal crimes that you could commit in the United States.
And there are a combination of statutory violations and regulatory violations,
but things like selling graded cream cheese,
or you know walking on the grass at the Capitol. Things like that.
What are some of the more ridiculous ones?
Can you give us more, some more examples?
Some of them are really pretty hilarious.
A personal favorite of mine is giving an unreasonable gesture to a passing horse in a national park.
The law doesn't define what an unreasonable gesture is, and so you can kind of get creative I think.
And I go through a few of my ideas for obscene gestures that you could make to a horse in the book
But the regulator's don't give you sufficient guidance.
And in a lot of cases all Congress does is basically say,
hey look any violation of any regulation that the Secretary of the Interior makes,
that's a federal crime.
So oftentimes you have to go all the way to the Supreme Court
to find out whether you've committed a crime or not.
It is a pretty hilarious book. A lot of the illustrations and the examples are very very funny.
But I'm curious, there's a serious undercurrent to this, right?
Why does this all matter?
Is it just shits and giggles or is there some kind of underlying importance to all this?
There really is a serious underpinning. I mean people have been giving different names to it.
We've talked about executive overreach, we've talked about over-regulation, over-criminalization.
There's a whole bunch of names for it, but the truth is
that when the country was founded there were basically three federal crimes
and a government of limited powers.
So it was treason, counterfeiting, and being a pirate basically were the crimes.
And for a long time after that maybe the total crimes on the federal books were about 20
But now some scholars have estimated that that number exceeds 300,000.
And here's really what the problem is,
The problem is if you can't know whether you're committing a crime or not, is it really a crime?
And how much respect for the more morally offensive laws on the books will there be,
if you can never really know if you're committing a crime?
Yeah and for each law that you mention, as nutty as it is,
you really do go into how we got into this mess to begin with.
The funny thing is with all this law, with all this regulation and all the statute,
it's very hard for a person to say what's in the books. And what's what's there.
And so people sort of line up on different sides of the debate
they either say regulation is inherently good or regulation is inherently bad.
The answer is it's really a mix. Sometimes a law is really truly trying to protect people from some harm out there,
but maybe it goes too far, maybe it misses the mark. Maybe it's been applied unconstitutionally
and so it was important to delve into the reasons for these laws because some are well-intentioned,
but they may be over-broad, too vague, or outdated.
And as ridiculous as they are, nobody sets out to make a preposterous law and put it on the books.
What is the source of a lot of these, there are certain categories that seem to provoke bizarre laws?
We all know that the Constitution gives Congress
certain powers, right? They can regulate commerce. They can regulate the high seas.
you know they can, certain territories, right. Commerce being probably the most broad statutory authority.
But they basically give blank checks to agencies, and say hey look,
any violation of any regulation on a particular topic that you write,
that's criminally enforceable.
And so where the action is I'll say, is food, public land, on high seas,
and money, for example, obviously is another place.
And one of my personal favorite is in the mail, right,
because everything that passes through the mail is potentially a federal crime.
And poop.
Poop is on the top of my list of things.
Poop and animal semen are about the the best kind of crimes that you can commit
because there's a shockingly high number of poop and semen crimes on the books.
Congress does seem to have some sort of scatological fixation with llama poop, right?
The shoveling llama poop in wrong places could be a federal offense?
Any llama that comes to this country has a mandatory quarantine period when they get here.
It's like thirty days or something like that.
And you cannot go visit your llama without permission.
And that can be a heartbreaking time in any llama owners life obviously.
But if you want to bring home some poop—
—Mm-hmm—
—you know, just to remind you of your llama, that is a quarantine violation.
Are these special interests drawing these laws? What is the sort of genesis of a lot of them?
I will admit there's not a llama poop special interest, right?
But yeah, the genesis of a lot of regulations are special interests are special interest.
So here's a great example, one of the earliest kind of federal crimes that came about
that was a violation of these regulations made by executive branch agencies was in margarine.
And anybody can guess where the margarine regulation came from. It was big butter, right?
And so the dairy industry came in and they said, we don't like this new kid on the block.
It's every bit as tasty as our product and people seem to not know the difference in mind, and it's cheaper.
And so the dairy lobby went to Washington and said,
we need comprehensive butter control.
And they got it. They got a butter bill passed. It was actually was a law called an act defining butter,
And it required all kinds of crazy things and some of it remains on the books today.
Interesting it's like the bacon law, right? The packaging for bacon. I found that one really interesting.
It explained a longtime fascination as to why every package of bacon you can actually see the bacon in it.
Yeah the bacon window.
—The bacon window.—
I call it the window of truth because I think that it really is the purpose that it serves and yeah, of course
It's to tell the consumer,
Hey, this is how fatty the bacon you are getting and it has to be a representative slice, right?
They can't just put the good stuff on top. And so, you know, that's why that window appears.
It's shocking to me that there's not a window on potato chip bags,
so that you can see that there's only six potato chips in the bag. But so far we've got the bacon rule.
We've heard a lot of criticism in the Trump administration
about this thing called the administrative state,
this idea that it's not lawmakers making the laws, that our elected representatives
with a sense of discussion and debate and due process,
but they're outsourcing things to agencies and federal bureaucracies
that are actually making the real details of the laws, and that's ultimately what really matters.
Is that an implicit critique that you're making in this book?
Yeah, I mean look article 1 section 1 of the United States Constitution says that Congress has the lawmaking power.
Period. Full stop.
It's not theirs to give away. And that's something called the Non-Delegation Doctrine,
which has sort of been dormant or dead for a number of decades.
But the truth is, it is Congress's job to make the law.
They're the lawmaking branch. That's why we call them lawmakers.
But they have given away, they've ceded that authority to executive branch agencies.
So now you have the enforcers also doing the regulating, the lawmaking.
So they're both picking what is a violation of the law,
and then prosecuting those violations of the law.
And to be fair like not all the laws in your book are bad necessarily,
like the law threat against threatening clowns. That's a good law.
—I'm pro clown.—
I'm definitely pro clown. Almost anything can be considered a drug paraphernalia.
Some of those laws are like just overly vague in that way, right?
Anything can be drug paraphernalia.
If anybody who had a creative roommate in college knows that anything can be drug paraphernalia.
But there's a couple of categories that Congress has specifically articulated.
Like miniature spoons that are less than 1/10 of a cubic centimeter in level capacity,
and that actually derives from
some interesting congressional testimony about the McDonald's mix spoon, which was used to stir coffee.
No I'm very glad they're spending a lot of time on the kind of stuff.
And it's not just Congress right? Like you mentioned the Powell decision,—
—the Supreme Court spends a shocking amount of time discussing these sort of absurd laws.
Why are they doing that? Underneath these absurd laws are there crucial constitutional questions at play?
Sure there often are.
I mean one of the main constitutional questions that occurs, not just the federal level,
but at the state level as well, is this question of void for vagueness, unconstitutional vagueness.
And so yeah in the Powell decision, the statute basically said "any concealable firearm".
So that's a crime to mail. You can't mail a concealable firearm. So you and I think,
well that's clearly a pistol or some small gun that I can put on my body. But in the Powell decision,
the court was looking at a 22 and a half inch sawed-off shotgun that was sent through the mail and they said,
well look, if you can dress appropriately, you could probably conceal that.
And so I don't know what the limits are. There's some big people out there. They could hide a lot of stuff.
So it's those kind of vague terms that often peak the courts interest.
Tell us a little bit about yourself. What is your–Why are you an expert in these absurd laws?
Why should we take your opinion seriously about this crazy stuff?
I don't know if anybody should take my opinion seriously about this, but I will tell you that
I'm fun at parties because I spend all my time reading the Code of Federal Regulations in the US Code.
And so what really it is, I've committed to the grunt work of going through all of these pages
and reading all these sections and subsections and subparagraphs. So, you know by day
I'm a white-collar criminal defense lawyer, that's what they say, but I mean I'll defend anybody for anything.
But but the truth is that I by night have been spending a lot of time trying to count the number of crimes
because the Department of Justice said that they couldn't do it.
They tried in the 80s, and quit.
And so I said look if I do one a day, I only need like 800 years to finish the job,
and then I'll be able to say that I counted them all. So that's what I've been doing.
That's what Twitter is for ultimately.
Twitter's for that, and destroying other people.
(Laughs)
Which continues to be illegal,—Right.—At least for the time being.
And you do mention in the beginning of the book that this is almost like a legalistic disclaimer.
Like this book is a book of humor and not serious legal advice.
—Right.—
Is there some like—I couldn't figure out why even put that in there.
Is there some law insisting that someone can sue you if they thought oh, this is legal advice,
I should commit all these eight hundred crimes?
The truth is if somebody comes to me and says is it illegal to "x", whatever the blank is filled with,
The answer is I don't know.
I can't sign a piece of paper that says, hey it's totally legal to do any particular thing because
you can't read all the laws. I haven't gotten through all of them yet, even though I've been doing it for five years.
And so I think what's important is for people who read the book to know it's a work of humor,
don't do anything in the book.
Yeah, you're probably not going to get charged for selling, you know, runny ketchup, but you could.
We'll talk about that later, but yeah.
It's important that people know that the truth is that the specter of criminal liability hangs over all of us,
all the time.
And that's why people find themselves before the courts and even the Supreme Court.
Are people often even charged with these crimes, or is it extremely rare?
So it depends, which crimes you're talking about?
I mean, you know
We expect prosecutors to exercise something called prosecutorial discretion.
What that ends up meaning is that they charge mostly gun crimes,
drug crimes, immigration crimes, and fraud crimes.
That's the overwhelming majority of it.
Now say the estimates are one and a half to two percent of the federal docket
is filled with these administrative crimes, violations of regulations.
That's still thousands of people each year.
That's thousands of lives people who have to get a lawyer, go to court, potentially appeal after a conviction.
Maybe try to go to the Supreme Court to find out if it's unconstitutional.
So yeah people are charged with them, and I go through a couple of examples in the book
of people who were charged with things that they never thought would be a federal crime,
maybe a violation or a small state misdemeanor or something of that effect,
but not something that would get them a federal criminal record.
Is it like if a federal prosecutor wants to throw the book at you,
they will add these charges on?
If a federal prosecutor wants to throw the book at you, it's my book that they throw,
but yes, really there's a coercive element to it, right?
So if we look at these right now, all the discussion is about process crimes right?
People talk about obstruction of justice, they talk about lying to federal agents.
The truth is if they can't get you on a substantive crime that everybody agrees is morally reprehensible,
they can often get you on lying to the feds.
Because they decide what's a lie, they decide whether they think that you were being truthful or not
and it's incumbent upon you to defend yourself in in federal court.
And so yeah, if you go into a meeting with federal prosecutors,
nobody can tell you that you're not admitting to a federal crime when you describe something that you did,
because you may not know whether there's a federal regulation or a statue that covers that conduct.
And that's a problem.
And you can actually learn a lot about the legal and judicial philosophies of different administrations
based on this stuff.
Like for example, the Obama administration was quite fond of the MBTA, the Migratory Bird Acts.
Right.
The Migratory Bird—
Treaty.
Treaty Act! Thank you.
And then the Trump administration looked at that same law and said no,
that's vague and ridiculous and we should strike that down.
Is that is this a window on two different administrations?
MBTA situation is one example where, yes the Obama administration said,
accidental bird deaths,
so if you get a in a really clean plate glass window and an Egret flies into your window and breaks its neck,
can you technically be charged?
Yes, Obama administration said, but we're gonna trust prosecutors not to charge those more ridiculous cases.
And including, you know, during the Obama administration, a utility was charged
for a bunch of birds dying in windmills accidentally. Nobody tried to kill those birds.
But then the Trump administration looked at it and said well, wait a second,
this is the epitome of vague law.
If we've just ceded what's a crime and what's not a crime to the executive branch,
that's sort of over-broad and impermissible.
So we're issuing new guidance saying that those kind of accidental bird deaths are not crimes.
Now nothing in the law changed, nothing Congress passed changed.
You could go look at the text and see the same words.
But two different administrations have said,
one is a crime and one's not a crime without a change in the law.
But what I will tell you is the same Trump administration has used the regulatory power
to create and change crimes on the books as well.
We saw the bump stock ban in March.
Basically with the stroke of a pen,
essentially doing the exact same thing that the Obama administration was criticized for,
the Trump administration made a whole new class of previously legal products
into criminal contraband. Without going through the legislative process.
So every administration is guilty of it in some respect.
It's maybe a question of degree.
It was the Department of Justice that issued the regulation,
they changed the regulation that interpreted what a machine gun is.
So essentially by changing the definition of a machine gun, they created a whole new class of crime.
So on day one you could have legally possessed it, on day two you were a federal criminal.
Why did you dedicate this book to the US Congress?
Like any, you know, great comedian,
I have ghost writers, and Congress is my ghostwriter.
I couldn't have done any of the book without them.
And it's because really what they've done is, again,
I don't think anybody's intentionally created the more ridiculous crimes.
A lot of them have been created by accident, right.
The Congress writes a law that says any violation that's a crime,
and then the regulator's go about their business making regulations.
And then somebody sits down, like me, and they start tweeting about it,
and they go technically, you know, you made it a crime to. . .you know, submit a stamp
in the migratory bird stamp contest and you used computer-generated art.
You're not allowed to use that.
You have to paint a duck or something like that.
But but the truth is they're not looking to create crimes all the time, but they do.
And they should be—Congress should be more careful about giving away that criminal enforcement power.
What can be done about this? Is there is a law, another law that needs to be passed?
How can we slow this sort of thing down?
Congress can go through and look at the statutes that I cite in the book
that give away this blanket criminal enforcement power to the agencies,
and then, it can
maybe take a look at those statutes because remember,
the reason that there's 300,000 federal crimes is not because of criminal statues, right?
There's maybe a couple thousand federal criminal statutes.
But if they go through those few that give away this blanket authority to regulators to make crimes,
and change that so that it's required that if something's gonna be criminally punished
it must specifically say so in the act.
That would eliminate a huge number of these federal crimes, right?
In order for a regulator to make it a crime, it has to specifically say so and Congress needs to approve it.
That would be a good step in the right direction.
Congress can also look at bad regulations and use this
little-used act called the Congressional Review Act and they can go through and look at the regulations and say
we disagree and we're overriding this regulatory action.
But they don't like to do that because it's not politically popular to do it.
And you did all the illustrations in this book.
And the illustrations are really wonderful.
You have really captured that kind of soul-sucking, bureaucratic diagram
that tells people, tells people what to do and how to do it, right?
Right, yeah.
Is that the look you were going for?
Yeah, exactly.
I mean and in fact if you walk through the Code of Federal Regulations,
you'll even see some similar type illustrations.
It's just this Government, you know, no joy, expressionless, sometimes faceless figure,
doing some prohibited act.
Yeah no color either. That's very important.
Yeah that's very important.
Yeah color might suggest hope or some sort of positivity.
And I wanted to crush that, stamp that out of the reader.
Yeah, that made me feel good.
Yeah.
Mike Chase, thank you very much.
The book is "How to Be a Federal Criminal" and it's out in bookstores?
June Fourth.
Very good. I'm Todd Krainin for Reason.