Mimesis Law
4 June 2020

Russian Doping, American Dopes

May 20, 2016 (Mimesis Law) – Federal prosecutors, having apparently solved all of the country’s problems, have found a new target. The Department of Justice is expanding its role from United States prosecution to world prosecution. How could this possibly go wrong?

Federal prosecutors from the Eastern District of New York are investigating Russian athletes doping in international sporting competitions.

The United States Attorney’s Office for the Eastern District of New York is scrutinizing Russian government officials, athletes, coaches, anti-doping authorities and anyone who might have benefited unfairly from a doping regimen, according to the people, who did not have authorization to speak about the inquiry publicly. Prosecutors are believed to be pursuing conspiracy and fraud charges.

Federal law enforcement officials have made the shocking discovery that athletes competing on the international stage are cheating. And cheating will not be tolerated, outside of the Department of Justice. So begins the journey from “creative investigation” to “9437 month sentence.” Sounds like it’s going to be a good one.

The inquiry, which originated with the Federal Bureau of Investigation, would have to clear several hurdles before charges could be filed. Even if prosecutors are able to establish jurisdiction, securing the cooperation of Russian authorities in pursuing evidence and witnesses — and in ultimately delivering any charged defendants to the United States — would be all but impossible.

Oh. So it’s unclear that the courts will even have jurisdiction. And it they do, the Russians are unlikely to cooperate with its largest world rival over charges it believes are part of a Western conspiracy. Getting witnesses and evidence would involve federal agents from America going to a country that doesn’t want them there and probably won’t let them in, to find evidence in a case Russia doesn’t think is legit. “All but impossible” is actually a bit generous.

Cheating at athletic events and the expansion of federal criminal prosecutions have a lot in common. Both have been going on for a long time and both aren’t going to end any time soon.

Long before performance-enhancing drugs were invented, athletes were searching for an edge. From curses to magic potions, the idea that “winning isn’t everything, it’s the only thing” is not a new ideal. Ancient athletes were all about performance enhancement.

The [Olympic] judges were concerned that athletes would use performance-enhancing potions. But even more popular was placing curses on your opponents. There are stories of athletes veering off course [or] not being able to make it out of the starting blocks.

There were a lot of performance-enhancing potions floating around. Lizard’s flesh, eaten a certain way, for example, became magic.

The method may have changed over the years, but not the motive. Athletes want to win and at a certain level, they will do anything to get there.

Along similar lines, the federal criminal justice system has always been gluttonous, eating up every available growth opportunity since its inception. The Federal Judicial Center explains how the system went from a relatively limited criminal system to the expansive system that exists today.

The power of the federal government to initiate criminal prosecution originally involved criminal activity directly related to federal government function, such as commerce, foreign affairs, and tax. Most federal cases were prosecutions of piracy and crimes on the high seas.

The early 1900s saw federal prosecutions begin to grow, especially when Congress decided to get into the drug game.

In 1914, Congress passed the Harrison Narcotics Act, which resulted in over 4,000 cases per year by the 1920s.

Congress gets its power to enact federal laws from Article I, Section 8, clause 3 of the Constitution, also known as the Commerce Clause:

The Congress shall have power…[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes…

Congress has used this power to enact law after law in pursuit of regulating commerce among the states.

The nature of criminal cases in the federal courts changed in the second half of the twentieth century as Congress expanded its authority under the Commerce Clause to establish federal penalties for what traditionally had been subjects of local and state law enforcement. Beginning in the 1930s, Congress targeted criminal organizations, which had emerged during Prohibition, with statutes that made crimes such as murder, kidnapping, theft, bank robbery, extortion, and possession of illegal firearms federal crimes if commission of them involved crossing state lines or the use of facilities of interstate commerce. Between the 1960s and 1990s, Congress passed laws establishing federal jurisdiction over crimes that “affected” interstate commerce, no matter how indirectly, in such areas as civil rights, drugs, gambling, loan sharking, sexual abuse, and violence against minority groups.

The result? A whole lot of people doing a whole lot of jail time over “interstate commerce”, a term most of those people don’t understand and have never heard of until they were read their indictments in a federal courtroom.

And now? The same expanded authority is being used to go after a country that has zero reason to cooperate in any way. The Washington Post points out this is not a lark. Federal prosecutors are increasingly looking outside of American borders for crime.

In addition to the doping investigation, federal prosecutors are involved in a high-profile prosecution of soccer’s international governing body and have increasingly turned their efforts towards corruption and bribery in other countries.

In the doping case, the prosecutors are trying to get jurisdiction based on either a competition that took place in the United States or a connection to the banking system. Seems like there is plenty of crime here in America to keep prosecutors busy, so why are they stretching their jurisdiction to fight crime that arguably has very little effect on the American people?

A law professor says it’s part of American culture to spread the good news of freedom around the world.

“It’s part of our culture of wanting to bring democracy and transparency to the world,” said Andrew B. Spalding, a law professor at the University of Richmond who teaches and writes about international anti-corruption law. “We really stretch jurisdictional principles. Whether we should be doing that is an open question.”

It may be an open question, but it’s certainly not a difficult one. This investigation and any attempted prosecution would be a grand waste of time and resources. There is no need to expand criminal jurisdiction past the borders of America, especially in this case. Cheating sucks, but it’s not the kind of thing the American criminal justice system is equipped to deal with. Nor should it be.

The Olympic Committee has the power to bar athletes from competition. That’s fine and seems to solve the problem. Why add American federal prosecutions to the mix? Especially when the international targets are unlikely to cooperate.

A nearly impossible investigation, highly questionable jurisdiction, and a difficult prosecution. All for what? To teach Russian athletes they aren’t supposed to cheat in sporting events? To put them in jail to prevent them from cheating in sporting events? To show the rest of the world we mean business? To piss of an unstable country that doesn’t like us much to begin with?

Over-criminalization has become kind of a joke because it’s so routine. This isn’t really funny. Time, money, and people trying to force fairness in international sporting competitions. This investigation is useless in advancing any of America’s interests.

One of the main targets of the investigation is Grigory Rodchenkov, long-time head of the Russian anti-doping laboratory.

In the wake of the report last fall, which cast shadows on not just the Moscow laboratory but also Russia’s antidoping agency, Dr. Rodchenkov said that [Russia’s minister of sport] Mr. Mutko had summoned him to the sports ministry’s headquarters and requested his resignation. Dr. Rodchenkov fled to the United States, fearing for his safety, he said.

Currently living in Los Angeles, Dr. Rodchenkov, 57, has said he has no intention of returning to Russia. “I have no choice,” he said in a recent interview. “I am between two flames.”

Sounds like his two flames are a federal criminal prosecution or the wrath of Russian government officials. If he is about to get indicted by the feds, maybe he should have taken his chances in Russia.

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  • Alan
    20 May 2016 at 9:57 am - Reply

    Ultimately, maybe it’s better if they’re squandering precious resources investigating crimes they can never prosecute than squandering precious resources ruining US citizens’ lives?