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—, KIRKLAND & ELLIS LLP Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.” Slip op. at 6.) In Cuellar, the Court examined the link between the money-laundering statute’s mens rea requirement and the underlying elements of the offense. After a careful textual analysis of the statute and its structure, the Court ruled that the defendant’s conviction could be sustained only if he knew that the transportation of funds to Mexico was designed to conceal their nature, location, source, ownership or control—not merely that the defendant knew that the Funds had been hidden during their transportation to Mexico. Slip op. at 10-17. Both decisions relied on the ordinary meaning of the statutory terms Congress chose. And both rejected attempts to broaden those words to cover conduct not clearly targeted by Congress. Taken together, these decisions reject the notion that prosecutors can take language from a narrowly drawn federal statute—especially one that itself federalizes the prosecution of conduct traditionally within the heartland of State police powers—and convert it into a license to reach additional conduct by ignoring, rewriting or expansively interpreting the law. Both cases additionally rejected the notion that statutes should be broadly construed in order to facilitate prosecutions or to in anyway diminish the burden on prosecutors to prove each essential element of a federal charge in conformity with Congress’s determinations as to what is within the federal criminal law and what is not. The conflict between the Santos and Cuellar decisions and CEOS’s grant of effectively unlimited discretionary authority to the USAO to take federal law to “novel” places where they have never reached before could not be starker. These lessons have no less force in the context of Executive Branch decision-making than they do in the context of Judicial interpretation. As you are aware, when federal prosecutors exercise their discretion, they bear an independent constitutional obligation to faithfully interpret the law as written—not to broaden its scope beyond the limits endorsed by both Congress and the President. There is no support for CEOS’s view that the courts or a jury should ultimately decide whether a “novel” construction of the law is correct. Instead, the Executive Branch itself has a non-delegable obligation not to exceed its authority; the power of other branches to check or remedy such usurpation does not legitimize executive action that exceeds its bounds. See Tab 12, November 2, 1994 Memorandum from Assistant Attorney General Walter Dellinger to the Hon. Abner J. Mikva, Counsel To The President, on Presidential Authority To Decline To Execute Unconstitutional Statutes, available at http://www.usdoj.gov/olc/nonexcut.htm. In this case, the text, structure, and history of the relevant federal statutes unambiguously indicate that these statutes were designed to address problems of a national and international Justice Stevens, in his concurring opinion, also acknowledged the rule of lenity, calling the plurality opinion’s discussion of that rule “surely persuasive.” United States v. Santos, No. 06-1005, slip op. at 5 (June 2, 2008) (Stevens, J., concurring). HOUSE_OVERSIGHT_012146