No Comment — December 9, 2009, 5:25 pm

Supreme Court Expresses Unease Over Honest Services Prosecutions

The Supreme Court heard a group of appeals on Monday that included convicted press baron Conrad Black, convicted Enron CEO Jeffrey Skilling, and Bruce Weyrauch, an Alaskan legislator facing a corruption charge. The cases have united a broad coalition against the Justice Department: the U.S. Chamber of Commerce joins hands with the National Association of Criminal Defense Lawyers, for instance. Although the cases raise fundamental questions about the fairness and judgment of Justice Department prosecutors, they are likely to be resolved on a highly technical question: is the honest services fraud statute unconstitutionally vague? Congress adopted the statute in 1988 to reverse a Supreme Court decision that insisted on a very narrow reading of the fraud statute. The new language, codified at 18 U.S.C. § 1346, is simple: “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

Normally the Supreme Court is extremely reluctant to hold that a statute is too vague to be enforced. The test is whether a person of normal intelligence can understand and apply it. The Justice Department rose valiantly to the statute’s defense at oral argument, insisting that the language was plain and easily understood and applied. But things didn’t go well for the government on Monday. Justice Antonin Scalia, who has now repeatedly gone out of his way to express his contempt for the statute and the way it has been enforced by the Justice Department, came on like a freight train. He called the statute legal “mush” and attacked the interpretations that the Justice Department put on it, saying the Justice Department didn’t understand the law and “I don’t know how you expect the average citizen to.” Justice Breyer suggested that, as the Justice Department has construed the statute, fully “140 out of 150 million” people in the American workforce would be criminals. Justice Kennedy called the statute “a problem.” No sympathetic voices were heard for the Justice Department.

While argument focused on questions of statutory interpretation, it was also a frank expression of no confidence in the Justice Department’s management of public-integrity cases. Federal prosecutors have a solid record of bringing home convictions in such cases. But courts have increasingly expressed displeasure and occasionally anger that the cases were brought in the first place. The Seventh Circuit took the extraordinary step of ordering the release of a convicted Wisconsin public official at oral argument, adding that the government’s case may have gotten a conviction, but it never should have been allowed to go to trial. Prosecutions in Pittsburgh and Maine were also thrown out of court. And the Public Integrity Section’s highest profile case, the prosecution of Senator Ted Stevens, disintegrated after serious misconduct by prosecutors was revealed. What rang through the oral argument in the Supreme Court was an unmistakable concern that federal prosecutors handling public-integrity cases were spinning out of control.

While the Supreme Court reviewed a series of cases joined together, their ruling may affect dozens more. Alabama Governor Don E. Siegelman is the most prominent target of a federal honest services fraud prosecution so far, and the prosecution of his case remains under a cloud of accusations now raised by attorneys general across the United States, of gross misconduct by the Justice Department. Mississippi’s Paul Minor, and Georgia’s Charles Walker are other cases in which Justice Department lawyers achieved honest services fraud convictions that are now under attack.

If the Court rules as oral argument suggests they will, their ruling is likely to have far-reaching consequences for the Justice Department as well. It will have to undertake a review of dozens of cases in which convictions were secured under the statute, and it will likely have to abandon a large number of those convictions. Patrick Fitzgerald, the U.S. Attorney in Chicago, signaled his understanding of the dilemma by rushing to revise his indictment of former Illinois Governor Rod Blagojevich as the Court took up the issue.

The case comes at a particularly difficult time for the Justice Department. Leading figures in the Public Integrity Section, which handles honest services fraud cases, are now themselves the target of a criminal probe initiated by Judge Emmet Sullivan based on his determination that they engaged in serious misconduct in the Stevens trial. The section’s head, William M. Welch II, was forced to resign in October.

Share
Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

March 2016

Mad Magazines

= Subscribers only.
Sign in here.
Subscribe here.

Killer Bunny in the Sky

= Subscribers only.
Sign in here.
Subscribe here.

Bird in a Cage

= Subscribers only.
Sign in here.
Subscribe here.

The Hidden Rivers of Brooklyn

= Subscribers only.
Sign in here.
Subscribe here.

Save Our Public Universities

= Subscribers only.
Sign in here.
Subscribe here.

The Rogue Agency

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Save Our Public Universities·

= Subscribers only.
Sign in here.
Subscribe here.

“Whether and how we educate people is still a direct reflection of the degree of freedom we expect them to have, or want them to have.”
Photograph (crop) by Thomas Allen
Article
New Movies·

= Subscribers only.
Sign in here.
Subscribe here.

The Force Awakens criticizes American imperialism while also celebrating the revolutionary spirit that founded this country. When the movie needs to bridge the two points of view, it shifts to aerial combat, a default setting that mirrors the war on terror all too well.”
Still © Lucasfilm
Article
Isn’t It Romantic?·

= Subscribers only.
Sign in here.
Subscribe here.

“He had paid for much of her schooling, something he cannot help but mention, since the aftermath of any failed relationship brings an ungenerous and impossible impulse to claw back one’s misspent resources.”
Illustration by Shonagh Rae
Article
The Trouble with Iowa·

= Subscribers only.
Sign in here.
Subscribe here.

“It seems to defy reason that this anachronistic farm state — a demographic outlier, with no major cities and just 3 million people, nine out of ten of them white — should play such an outsized role in American politics.”
Photograph (detail) © Justin Sullivan/Getty Images
Article
Rule, Britannica·

= Subscribers only.
Sign in here.
Subscribe here.

“This is the strange magic of an arrangement of all the world’s knowledge in alphabetical order: any search for anything passes through things that have nothing in common with it but an initial letter.”
Artwork by Brian Dettmer. Courtesy the artist and P.P.O.W., New York City.

Number of people who attended the World Grits Festival, held in St. George, South Carolina, last spring:

60,000

The brown bears of Greece continued chewing through telephone poles.

In Peru, a 51-year-old activist became the first former sex worker to run for the national legislature. “I’m going to put order,” she said, “in that big brothel which is Congress.”

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Two Christmas Mornings of the Great War

By

Civilization masks us with a screen, from ourselves and from one another, with thin depth of unreality. We habitually live — do we not? — in a world self-created, half established, of false values arbitrarily upheld, largely inspired by misconception, misapprehension, wrong perspective, and defective proportion, misapplication.

Subscribe Today