Trump Should Take a Bite out of Nonsensical Laws

U pon encountering a shark in ocean waters, it is unlikely your first reaction would be one of compassion. This is primarily because the shark’s first reaction would be to view you as a first-class ticket to Flavortown.

John Moore and Tanner Mansell are not like you or me. They worked for a company that facilitated shark viewing, and while taking a family out on an expedition, they encountered a group of sharks they believed were caught on an illegal fishing line off the coast of Jupiter, Fla. They freed the sharks, collected the line, and reported their actions to a Florida Fish and Wildlife officer.

Now they are convicted felons.

It later turned out that the fishing line was legal, authorized by the National Oceanic and Atmospheric Administration to conduct shark research. Unfortunately for the duo, a federal law dictates that anyone within the “special maritime and territorial jurisdiction of the United States” who “takes and carries away, with intent to steal or purloin, any personal property of another,” can be convicted of a felony and imprisoned for up to five years.

Assistant United States Attorney Tom Watts Fitzgerald decided to charge Moore and Mansell with “stealing,” despite the fact they had just made a well-intentioned mistake. The two men asked the family in the boat to help them reel the line in, suggested they take notes on what they saw, dropped the line off at the dock, and called law enforcement. None of this suggests “purloining” in a sense worthy of branding the two men as felons for the remainder of their lives. Their actions were not for their benefit, only for the sharks’. (Sadly, in court, sharks are notorious for being unreliable character witnesses.)

Indeed, the duo argues that there should be some allowance for the fact that they didn’t know they were breaking the law. But two courts have now disagreed, saying the text of the federal statute provides no wiggle room for the defendants to argue they lacked mens rea (criminal intent; literally a “guilty mind.”)

“Dispensing with the mens rea requirement has led to the criminalization of totally innocent conduct,” writes the Cato Institute’s Mike Fox, “and to destroying the lives of well-meaning people like John Moore and Tanner Mansell, who genuinely believed they were doing the right thing.”

Judge Barbara Lagoa of the Eleventh Circuit Court of Appeals (and a Trump appointee) summed up their plight. She said she had no choice but to uphold the conviction yet bemoaned the fact that the case was brought against Moore and Mansell at all. She mocked Fitzgerald as having taken “a page out of Inspector Javert’s playbook” for his decision to prosecute.

In criticizing the rigidity of the federal law, Lagoa (herself a former prosecutor) offered a hypothetical: Say a man, call him Bob, saw another man holding a gun charging at an elderly woman, intent on snatching her purse. Bob runs over and disarms the man, who flees the scene. Bob calls the cops and waits for them to show up so he can turn the gun over.

Did Bob break the law by “stealing” another man’s gun? Lagoa argues that, given the rigid language of the law cited in the Moore and Mansell case, Bob would be guilty of a felony because he took the property of someone else who had planned to use it.

“Perhaps Bob would be able to take advantage of certain affirmative defenses, including self-defense or defense of another,” she writes, “but Bob should not have to get to that point — because Bob should not be prosecuted.”

What’s more, Moore and Mansell are felons “for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in.”

The shark whisperers are just the most recent victims of a rapidly expanding list of federal laws that no layperson can possibly follow. According to a 2023 study by the Mercatus Center, the number of sections creating criminal codes has increased by 36 percent since 1994. That year, there were roughly 3,825 federal crimes. Now, there are approximately 5,199. A popular talking point a few years ago posited that the average American unknowingly broke three federal laws per day. (Donald Trump would likely see that as a rookie number.)

The number of federal crimes doesn’t even account for the labyrinth of federal rules that reach down into every crevice of our daily lives. In 1993, President Bill Clinton’s Federal Register of regulations totaled 61,166 pages. By Joe Biden’s term, it had grown to 90,402 pages.

Of course, prospectors panning the federal code won’t need much time to find gold bars. Attorney Mike Chase’s social media feed “A Crime a Day” has unearthed some real howlers. For instance, if you offer to buy swan feathers so you can make a woman’s hat with them, think again — it’s illegal. If you plan to fly from Puerto Rico to America with raw pork in your bag (and who hasn’t), be prepared on arrival to be met with handcuffs. If you sell spray deodorant, you must warn users not to spray it in their eyes. (Although this is typically a useful strategy to avoid having to watch The View.)

And for you spherical vigilantes out there, be warned that it is against federal law to sell a small toy ball without a warning that says: “This toy is a small ball.” The legal definitions that differentiate a “ball” from a “small ball” are roughly the length of the Gettysburg Address.

At the very least, Congress should eliminate the laws that simply reinforce common sense. In 2021, a 25-year-old Illinois woman was charged with a crime when she walked up to take a selfie with a bear and its three cubs in Yellowstone Park. She violated the law against “feeding, touching, teasing, frightening, or intentionally disturbing wildlife” in a national park. But why even have a law when most Americans would understand that nature will take its course? Who even lobbied for this statute? (Certainly not the bears.)

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood,” said James Madison in 1788, presumably just before he choked on a medium-sized rubber ball.

As Elon Musk scrounges for nickels under the federal government’s couch cushions, one answer would be to stop spending money prosecuting people who haven’t done anything wrong. Society is no safer because two tour guides in Florida who tried to save the lives of a few sharks are now forever branded as felons. The other answer is to root out the ridiculous laws and rules in the first place. If Donald Trump has as much power over the Department of Justice as he now claims, this is the perfect place to apply a little common sense.