Justice Antonin Scalia dissented yesterday from a Supreme Court decision not to take on an appeal coming out of Chicago. The case involved three Chicago municipal employees who had been accused of “honest services fraud” in connection with an alleged scheme whereby patronage jobs were doled out for payments. Scalia said in his dissent that the law was so hopelessly vague that it could be used to prosecute an employee who called in sick to go to a Cubs game.
“It may be true that petitioners here, like the defendants in other ‘honest services’ cases, have acted improperly. But ‘Bad men, like good men, are entitled to be tried and sentenced in accordance with law,” Scalia wrote. And he wound up with an even tougher statement, “Indeed, it seems to me quite irresponsible to let the current chaos prevail.”
Scalia is correct about this, and the matter is far from trivial. Over the last eight years, the Justice Department’s Public Integrity Section has embarked on a disturbing campaign to strike against public corruption through the use of the concept of “honest services fraud.” At the end of this campaign, the reputation of the Justice Department itself has been seriously damages. In the last two weeks alone, the section head William Welch and most of his senior team were held in contempt for repeatedly lying to a federal judge in Washington and for failing to comply with the court’s unambiguous orders. The Justice Department was forced to replace its entire legal team. In a courthouse in Maine only a few days later, another judge dismissed one of their most closely followed cases, focusing on phone-jamming during a federal election, saying the evidence was now clear that the entire prosecution was a primitive political retaliation masquerading as law enforcement.
The Bush Administration systematically went after its political adversaries all over the country, regularly targeting political figures whose offices Karl Rove coveted for the G.O.P. and individuals who gave money to the Democratic Party. The ratio of prosecutions of Democrats as opposed to Republicans stood at roughly 6 to 1. Under Michael Mukasey, who promised to clean the problem up, the pattern held steady, and efforts to investigate matters from within were consistently swept under the carpet.
Consider the case of Paul Minor, a prominent trial lawyer from Mississippi. Minor now sits in a federal prison while his wife is dying from brain cancer. Minor’s offense? He was the leading donor to the Democratic Party of Mississippi. He was prosecuted for giving money to Democratic candidates for judicial office and then appearing before those judges. His conduct was legal under Mississippi legislation. But the federal prosecutor in Mississippi used the vague provisions of the “honest services” statute to prosecute and convict Minor.
The case of Alabama Governor Don Siegelman is another example of this abuse. But there are actually hundreds of cases still pending, and a large number of cases in which the massive power of the Justice Department was abused to get innocent defendants to accept a guilty verdict under plea bargain arrangements.
The whole area of “honest services” fraud has become an enormous embarrassment to the United States and a demonstration that federal prosecutors sworn to battle corruption can behave more corruptly than those they target and do it with complete impunity. Scalia suggests the air needs to be let out of this balloon. He’s right. And the matter couldn’t be more urgent.
Update, Tuesday, February 24 2009, 11:16AM
Several readers, mostly legal academics, have written me asking for a more in-depth explanation of the problems of “honest services fraud” under federal statute. The issues raised involve some fairly convoluted statutory construction problems and the interplay between federal criminal statutes and state law.
In essence, this provision has routinely been used by Bush-era federal prosecutors to criminalize things that clearly are legal under operative state law. The statute does not reflect a federal decision to criminalize them; rather, that decision is in the mind of the prosecutors, and a careful tracking of the cases shows it is extremely uneven in its application—making for serious abuse.
It’s beyond the scope of No Comment to get too deep into statutory construction and legislative history arguments, but readers looking for more should seek out Michael Avery’s note, “Whose Rights? Why States Should Set the Parameters for Federal Honest Services Fraud Prosecutions” in the current Boston College Law Review for a very authoritative treatment. I share Avery’s analysis of the problem. I am not completely convinced of his prescriptions for a fix, but they are very thoughtful and they may be right.