No Comment — October 1, 2010, 4:24 pm

Justice After Skilling

In the Skilling (PDF) case, the Supreme Court, moved by a skeptical view of the Justice Department’s use of “honest-services theft” theories to prosecute corruption cases, sharply hemmed in the practice by saying that the statute only covered “bribes and kick-backs.” Three of the justices, Scalia, Thomas, and Kennedy, would have gone much further. Indeed, during oral argument several of them took the Justice Department to task for its at times attenuated interpretations of the statute, with Kennedy arguing that the Department’s take would criminalize roughly half the governmental workforce. In rendering their decision, the Court was plainly inviting the Justice Department to rethink its overreaching stance—just as it suggested that a significant number of convictions the Department had secured had to be reviewed—and a large number of them will certainly be set aside. I’ve been studying this issue for some time, and–while I would have come out with Scalia, Thomas, and Kennedy–I think the Court hit the mark with its ruling.

The Justice Department, however, has responded with wails of denial and by pressing Congress to overturn the Skilling decision. Doing the Department’s bidding, Judiciary Chair Patrick Leahy has offered a new bill, the “Honest Services Restoration Act,” which would allow the prosecution of “undisclosed self-dealing.” It was the subject of a Senate Judiciary Committee hearing on Tuesday.

Ranking Republican Jeff Sessions immediately exploited the absurdity of the fix. The Supreme Court came close to striking the old statute entirely because of its hopelessly vague language. So the fix is to outlaw “undisclosed self-dealings?” “That’s a pretty broad statute, it really is,” Sessions noted. Indeed, Leahy’s bill is even vaguer than the original statute. He and the Justice Department are demonstrating a stubborn refusal to take the guidance that the Supreme Court has offered.

Assistant Attorney General Lanny Breuer appeared at the hearing to press the Department’s case for restoration of powers. “One of the tools that we have relied upon for more than two decades was significantly eroded,” Breuer stated. He asked for enactment of the new bill to “fill the gap.”

The hearing demonstrated remarkably little serious engagement with the issues presented in the legislation. No one is going to stand before a Senate committee and present arguments in support of corruption. But the honest-services theft theory has been the subject of valuable criticism both in the legal academy and among practitioners. Hardly a hint of this criticism was to be found in the Judiciary Committee hearing. In essence the criticism presents precisely the points that the Supreme Court validated: the statute itself is vague, its interface with state statutes is deeply flawed, and a review of high-profile cases brought by federal prosecutors over the last decade has shown an alarming measure of abuse, much of it transparently partisan. Misapplication of the honest-services theft statute by federal prosecutors has done severe damage to the reputation and morale of the Justice Department. That’s a point that Inspector General Glenn Fine recently made. (PDF) It should also have been bitingly clear to Breuer on Tuesday, as he offered public condolences to the family of one of the public integrity prosecutors who committed suicide while awaiting the outcome of a court-appointed inquiry into the unethical and possibly illegal fashion in which the prosecution of Senator Ted Stevens was pursued.

No doubt the Justice Department would like another blunderbuss in their gun cabinet. But their arsenal is already very potent–in this area, Congress only very rarely denies them anything they ask for. It would be a serious mistake for Congress simply to reverse Skilling without even taking a second to look into the issues that the Court (and particularly Justices Scalia, Kennedy, and Thomas) thoughtfully raised. In addition to evidence of need, the Justice Department should offer up proof that it has heard the criticisms, understands them, and is taking steps to rectify its internal problems. So far, however, Breuer offers us only denial, coupled with thinly veiled threats against those who dare to criticize the performance of his division. I don’t doubt Breuer’s good faith and determination to get this right. On the other hand, he has a far bigger cleanup job on his hands than he is willing to acknowledge.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

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

Beltway Secrecy

In five easy lessons

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

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2017

Remainers

= Subscribers only.
Sign in here.
Subscribe here.

JB & FD

= Subscribers only.
Sign in here.
Subscribe here.

Blood and Soil

= Subscribers only.
Sign in here.
Subscribe here.

A Grim Fairy Tale

= Subscribers only.
Sign in here.
Subscribe here.

Trump: A Resister’s Guide

= Subscribers only.
Sign in here.
Subscribe here.

Little Things

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Illustration (detail) by Steve Brodner
Article
The Patient War·

= Subscribers only.
Sign in here.
Subscribe here.

(1) To need his glasses and be struck by an awareness that they are not at hand, an ordinary enough circumstance for Frederick Douglass, except sometimes it’s accompanied by a flash of extraordinary dread. If not quite panic, certainly an unease disproportionate to a simple recurring situation. Dread that may be immediately extinguished if he locates his horn-rimmed, owlish-eyed spectacles exactly where he anticipated they should be. He sees them and almost sighs. Nearly feels their slightly uncomfortable weight palpable on his nose. Finding the glasses enough to reassure him that he remains here among the living in this material …
Photograph (detail) © Andrew Quilty/Oculi/Redux
Article
Little Things·

= Subscribers only.
Sign in here.
Subscribe here.

(1) To need his glasses and be struck by an awareness that they are not at hand, an ordinary enough circumstance for Frederick Douglass, except sometimes it’s accompanied by a flash of extraordinary dread. If not quite panic, certainly an unease disproportionate to a simple recurring situation. Dread that may be immediately extinguished if he locates his horn-rimmed, owlish-eyed spectacles exactly where he anticipated they should be. He sees them and almost sighs. Nearly feels their slightly uncomfortable weight palpable on his nose. Finding the glasses enough to reassure him that he remains here among the living in this material …
Photograph (detail) of miniatures by Lori DeBacker by Thomas Allen
Article
Blood and Soil·

= Subscribers only.
Sign in here.
Subscribe here.

(1) To need his glasses and be struck by an awareness that they are not at hand, an ordinary enough circumstance for Frederick Douglass, except sometimes it’s accompanied by a flash of extraordinary dread. If not quite panic, certainly an unease disproportionate to a simple recurring situation. Dread that may be immediately extinguished if he locates his horn-rimmed, owlish-eyed spectacles exactly where he anticipated they should be. He sees them and almost sighs. Nearly feels their slightly uncomfortable weight palpable on his nose. Finding the glasses enough to reassure him that he remains here among the living in this material …
Illustration (detail) by Nate Kitch
Article
JB & FD·

= Subscribers only.
Sign in here.
Subscribe here.

(1) To need his glasses and be struck by an awareness that they are not at hand, an ordinary enough circumstance for Frederick Douglass, except sometimes it’s accompanied by a flash of extraordinary dread. If not quite panic, certainly an unease disproportionate to a simple recurring situation. Dread that may be immediately extinguished if he locates his horn-rimmed, owlish-eyed spectacles exactly where he anticipated they should be. He sees them and almost sighs. Nearly feels their slightly uncomfortable weight palpable on his nose. Finding the glasses enough to reassure him that he remains here among the living in this material …
Illustration (detail) by Matthew Richardson

Chances that a Soviet woman’s first pregnancy will end in abortion:

9 in 10

Peaceful fungus-farming ants are sometimes protected against nomadic raider ants by sedentary invader ants.

In San Antonio, a 150-pound pet tortoise knocked over a lamp, igniting a mattress fire that spread to a neighbor’s home.

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

HARPER’S FINEST

Who Goes Nazi?

= Subscribers only.
Sign in here.
Subscribe here.

By

"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."

Subscribe Today