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Tuesday, December 08, 2009

Will SCOTUS finally get rid of prosecutorial discretion to write anti-corruption law?

That's what today's oral argument in Weyhrauch v United States, No. 08-1196 sounded like to me and others as well. If that's the accurate read of the justices' views, then the news is Christmas come early for me. I've been inveighing against the corruption of allowing federal prosecutors to define corruption inveighing against the corruption of allowing federal prosecutors to define corruption since the cert. denial in Sorich. As I argued here, here, and here (in an article rather than a blog post), construing the Mail Fraud statute to cover any action deemed by a U.S. Attorney gives federal executives far too much power to design the ground rules for politics.

Commentators and the Justices usually condemn the Mail Fraud's ban on deprivations of the "intangible right to honest services" for its failure to give adequate notice to defendants. But vagueness is the least of the statute's problems: The greater evil is that construing the statute to cover undisclosed conflicts of interest corrupts our political culture, by encouraging prosecutors to advance their own political careers through the sniffing out of their political enemies' inevitable conflicts of interest and face-saving hypocrisies. Conflicts of interest are endemic to any complex system in which people are expected to play multiple roles, either simultaneously or seriatim. Presidents appoint big fundraisers to be ambassadors to the Bahamas, because Presidents are both Diplomats in Chief and chiefs of their political party. Judges hire the children of friends as law clerks, because judges' social lives bleed into their professional lives. Ex-Presidents advance the political ambitions of their spouses, paying marital debts with political chits. Are these conflicts saved from criminality only because they are disclosed? But then how much disclosure is enough? Why would anyone leave the definition of these rules on disclosure and conflicts of interest to federal prosecutors, officials who, from Dewey through Giuliani to Christie, have been likely candidates for political office themselves and, therefore, have every incentive to nail rivals' hides to the wall in their effort to gain office as heroic virtue-crats?

Of course, one could attempt to narrowly construe the statute. But Albert Alshuler's amicus brief nicely (albeit inadvertently) shows how such narrowing is practically impossible without improperly delegating the definition of federal crimes to the states . It is high time for the Court to send this mess back to Congress for a complete overhaul. I am crossing my fingers that the Court agrees.

Posted by Rick Hills on December 8, 2009 at 11:08 PM in Constitutional thoughts | Permalink

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Comments

Robert Blakely writes: "You might get a pass when you engage in a conflict of interest, but why should I get one when I have no doubt that receiving a bribe is not rendering honest services to my employer? If I have any doubt, that doubt is usually thought to be removed by past constructions of the statute. The honest services landscape is filled with bribery prosecutions. If I really had any doubt, those cases remove it."

I think that this statement epitomizes the reason why there has been insufficient outrage at the expansion of the Mail Fraud statute. Robert, like many, apparently assumes that the statute is simply being construed to forbid bribery. Of course, there is no controversy nowadays that the statute can properly be applied to cases where a governmental official performs a service in return for a payment. Such "quid pro quo" cases involve conduct that is illegal under state law and uncontroversially harmful to the public interest.

But Weyhrauch, like other controversial Mail Fraud cases, are not bribery cases: They are "gratuity" cases in which there has been no proof of any quid pro quo. Weyhrauch sought a job with an oil service firm while sitting as a part-time state legislator and voting on bills of interest to that firm. The feds abandoned any effort to show that his votes were purchased by any expected offer of employment. They showed only that he had a mere conflict of interest.

The true judicial activism is expanding this federal statute to cover such conflicts, which will tend to be widespread in a republic like ours that relies heavily on part-time or voluntary labor for subnational policy-making positions. Boards of zoning appeals, planning commissions, city councils, state legislators, and many other policy-makers serve as uncompensated or under-compensated volunteers: They are expected to work in the private sector while they represent the public. Outlawing conflicts of interest for such policy-makers who necessarily have pervasive private interests is a matter of utmost difficulty and delicacy, bearing no relationship whatsoever to the simple matter of forbidding bribery. Prosecutors have no business appointing themselves to be Good Government watchdogs monitoring everything from campaign finance to post-government employment of elected officials.

Posted by: Rick Hills | Dec 9, 2009 3:12:37 PM

My understanding of vagueness jurisprudence is that except for the first amendment area, it is not a facial question, but as applied. Why are these cases any different? If so, we have to worry not that honest services maybe vague for you or you, but me, when a get a bribe. You might get a pass when you engage in a conflict of interest, but why should I get one when I have no doubt that receiving a bribe is not rendering honest services to my employer? If I have any doubt, that doubt is usually thought to be removed by past constructions of the statute. The honest services landscape is filled with bribery prosecutions. If I really had any doubt, those cases remove it. I am the last person to defend the exercise of discretion by this recent set of federal prosecutors.I know from person experience: I defended at trial the former governor of Alabama, whose political prosecution was a disgrace. But I don't want to give to justices a blank check to strike down any statute they dislike by calling it vague. That is a version of substantive due process.

Posted by: Robert Blakey | Dec 9, 2009 12:43:52 PM

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