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Sunday, February 01, 2009

Cardinal Mahony and honest-services wire fraud

The invaluable Prof. Friedman's Religion Clause blog has this post, about this Los Angeles Times story concerning a wire-fraud investigation of Cardinal Roger Mahoney.  This seems (putting aside the religious-liberty issues) an ambitious effort.  I've not been following the matter in recent years, but I would not have thought that the honest-services theory reached this far.  (I'd welcome comments from those who have been keeping up with the statute's development and application.)

As a religious-freedom matter, though -- and, to be clear, to say this is not to suggest that Cardinal Mahony has exercised well the power, and responded well to the trust, that his Church (and, members of that Church believe, God) placed in him -- this prosecution is troubling.  On the one hand, it seems quite unremarkable to say that allegations of the kind that are swirling around Mahony suggest, on any meaning of the word, a betrayal of Catholics in his Diocese.  On the other, it also seems that identifying (and then vindicating, through a criminal prosecution) the "honest services" that a Catholic bishop owes to the Catholics in his Diocese would involve the kind of inquiry that we -- for "Freedom of the Church" and "hands-off religious doctrine" reasons -- do not want, and should not permit, the civil authorities to undertake.

Posted by Rick Garnett on February 1, 2009 at 01:17 PM in Rick Garnett | Permalink


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Legal appropriateness aside, maybe in prison the good Cardinal would learn the horror of what happens when authorities pretend sodomizing doesn't happen.

Posted by: Carrespondent | Feb 3, 2009 2:48:13 PM

Jack McCoy seems to have been appointed US Attorney in L.A.

Posted by: Bruce Boyden | Feb 1, 2009 11:27:00 PM

I have not followed the development of the statute and application, but it seems to be a potential source of prosecutorial mischief.

But beyond that, how much different is this than suits against the Church for negligent supervision of abusive priests. Certainly it is harsher for those individuals involved to face criminal charges than to subject the institution to financial liability, but, as far as the impact on the institution and the demands on the courts, the entanglement problem seems just as acute. My own home jurisdiction, Wisconsin, has not allowed such claims - at least for allegations of abuse of an adult - on religious freedom grounds. But it is something of an outlier.

Posted by: Rick Esenberg | Feb 1, 2009 5:43:51 PM

It's a big stretch, much like the very same prosecutor's big stretch in the Lori Drew case I am defending. I hope to blog more on it soon.

Posted by: Orin Kerr | Feb 1, 2009 4:01:10 PM

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