The Supreme Court normally is not eager — far from it — to decide a constitutional question; its traditions suggest hesitancy in using that ultimate power. But on Tuesday, the Court seemed quite impatient to ask, and answer, an issue of constitutionality: the validity of the 1988 law that is a vital government weapon against corruption — the “honest services fraud” law.
It seemed, however, that there could be a scheduling problem: should they wait until March, to see if it is properly raised in a case then, or should they tell lawyers sooner to come up with the arguments in one or both of the cases just heard: Black et al. v. U.S. (08-876) and Weyhrauch v. U.S. (08-1196)? No one seemed enamored of a third option: act as if the issue is already before the Court in one or both of those cases, as presently composed.
It seemed evident, after two hours of oral argument Tuesday, that the Court had agreed to hear three cases this Term on the scope of the “honest services” law in order to make a major declaration about it, and perhaps go all the way to strike it down. Justice Antonin Scalia reflected what appeared to be on the mind of most of his colleagues: ”Why should I turn somersaults” to find a way to save the statute?
Of course, he has been the statute’s most vehement critic on the Court, but none of his colleagues rose to a defense of the law in the first two of the three cases to be heard on so-called “honest services fraud.”
The arguments in Black and Weyhrauch moved back and forth over what specific “honest services” are demanded by the mail fraud amendment adopted by Congress 21 years ago. Is the law violated if a worker reads the racing form after misleading the boss into thinking he was actually working? What about playing hookey to go to a ball game? Or telling the boss you liked his hat when you really didn’t? More broadly, might the law be so vague that 100 million workers might be violating it without knowing it?
Scott Horton at Harper’s:
“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.
My first reaction, admittedly, is to ponder the cynicism of the Court’s right flank; it’s hard to imagine Roberts and Alito, in particular, caring in the least about vague statutory language or the arbitrary application of criminal statutes in cases where the defendants weren’t frequently rich white men in suits.
Regardless of their motivation, though, and despite the fact that I have less than no sympathy for Conrad Black, I have to say that the arguments that the statute is constitutionally vague strike me as quite convincing:
Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.
Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.
Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.
Zachary Roth at TPM:
If the law goes down, pretty much anyone else convicted of honest services fraud could benefit. “There will be a rush to the courthouse,” Stan Brand, a veteran Washington ethics lawyer, told TPMmuckraker. Even those like Abramoff and Jefferson who were convicted on multiple counts, honest-services fraud among them, could get their sentences shortened. “Where you’ve got multiple counts, they’re not gonna get a pass, but they could get a reduction,” Brand said.
And Jonathan Turley told the New Orleans Times-Picayune that action by the Supreme Court “could potentially have a large impact,” on the Jefferson case.
Brand, reached in Indianapolis where’s he’s attending baseball’s winter meetings (the Granderson trade is the big news, he said), noted that former Maryland governor Marvin Mandel, and former Utah congressman George Hansen both had their corruption convictions overturned after the courts narrowed the laws — mail fraud, and false statements, respectively — on which they were convicted.
In a sign of how the issue is already shaking up corruption cases, prosecutors working on the case of former Illinois governor Rod Blagojevich indicated earlier this week that they planned to re-file their indictment against him, this time with no reference to honest services fraud, because of the chance that the Supreme Court might strike down or narrow the law. Blago was charged in connection to an alleged scheme to sell Barack Obama’s Senate seat, as well as other pay-for-play allegations.
Nonetheless, Brand, a longtime defense lawyer, said that if the law is indeed struck down, it won’t be a major blow for anti-corruption efforts. He said that prosecutors still would have numerous other charges at their disposal, including bribery, gratuity, conflict of interest, and false statements, among others.
“These guys have so many arrows in their quiver,” Brand said.
David Frum at FrumForum
UPDATE: And the ruling today: James Joyner
UPDATE #2: Jonathan Adler