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.

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