No Comment — February 23, 2009, 7:47 pm

Scalia Blasts Public Corruption Cases

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.

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 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2018

The Bodies in The Forest

= Subscribers only.
Sign in here.
Subscribe here.

The Minds of Others

= Subscribers only.
Sign in here.
Subscribe here.

Modern Despots

= Subscribers only.
Sign in here.
Subscribe here.

Before the Deluge

= Subscribers only.
Sign in here.
Subscribe here.

Notes to Self

= Subscribers only.
Sign in here.
Subscribe here.

Within Reach

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Minds of Others·

= Subscribers only.
Sign in here.
Subscribe here.

Progress is impossible without change,” George Bernard Shaw wrote in 1944, “and those who cannot change their minds cannot change anything.” But progress through persuasion has never seemed harder to achieve. Political segregation has made many Americans inaccessible, even unimaginable, to those on the other side of the partisan divide. On the rare occasions when we do come face-to-face, it is not clear what we could say to change each other’s minds or reach a worthwhile compromise. Psychological research has shown that humans often fail to process facts that conflict with our preexisting worldviews. The stakes are simply too high: our self-worth and identity are entangled with our beliefs — and with those who share them. The weakness of logic as a tool of persuasion, combined with the urgency of the political moment, can be paralyzing.

Yet we know that people do change their minds. We are constantly molded by our environment and our culture, by the events of the world, by the gossip we hear and the books we read. In the essays that follow, seven writers explore the ways that persuasion operates in our lives, from the intimate to the far-reaching. Some consider the ethics and mechanics of persuasion itself — in religion, politics, and foreign policy — and others turn their attention to the channels through which it acts, such as music, protest, and technology. How, they ask, can we persuade others to join our cause or see things the way we do? And when it comes to our own openness to change, how do we decide when to compromise and when to resist?

Illustration (detail) by Lincoln Agnew
Article
Within Reach·

= Subscribers only.
Sign in here.
Subscribe here.

On a balmy day last spring, Connor Chase sat on a red couch in the waiting room of a medical clinic in Columbus, Ohio, and watched the traffic on the street. His bleached-blond hair fell into his eyes as he scrolled through his phone to distract himself. Waiting to see Mimi Rivard, a nurse practitioner, was making Chase nervous: it would be the first time he would tell a medical professional that he was transgender.

By the time he arrived at the Equitas Health clinic, Chase was eighteen, and had long since come to dread doctors and hospitals. As a child, he’d had asthma, migraines, two surgeries for a tumor that had caused deafness in one ear, and gangrene from an infected bug bite. Doctors had always assumed he was a girl. After puberty, Chase said, he avoided looking in the mirror because his chest and hips “didn’t feel like my body.” He liked it when strangers saw him as male, but his voice was high-pitched, so he rarely spoke in public. Then, when Chase was fourteen, he watched a video on YouTube in which a twentysomething trans man described taking testosterone to lower his voice and appear more masculine. Suddenly, Chase had an explanation for how he felt — and what he wanted.

Illustration by Taylor Callery
Article
Before the Deluge·

= Subscribers only.
Sign in here.
Subscribe here.

In the summer of 2016, when Congress installed a financial control board to address Puerto Rico’s crippling debt, I traveled to San Juan, the capital. The island owed some $120 billion, and Wall Street was demanding action. On the news, President Obama announced his appointments to the Junta de Supervisión y Administración Financiera. “The task ahead for Puerto Rico is not an easy one,” he said. “But I am confident Puerto Rico is up to the challenge of stabilizing the fiscal situation, restoring growth, and building a better future for all Puerto Ricans.” Among locals, however, the control board was widely viewed as a transparent effort to satisfy mainland creditors — just the latest tool of colonialist plundering that went back generations.

Photograph from Puerto Rico by Christopher Gregory
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Post
CamperForce·

= Subscribers only.
Sign in here.
Subscribe here.

After losing their savings in the stock market crash of 2008, seniors Barb and Chuck find seasonal employment at Amazon fulfillment centers.

Amount Arizona’s Red Feather Lodge offered to pay to reopen the Grand Canyon during the 2013 government shutdown:

$25,000

A Brazilian cat gave birth to a dog.

Trump’s former chief strategist, whom Trump said had “lost his mind,” issued a statement saying that Trump’s son did not commit treason; the US ambassador to the United Nations announced that “no one questions” Trump’s mental stability; and the director of the CIA said that Trump, who requested “killer graphics” in his intelligence briefings, is able to read.

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

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today