It’s nice to know that some prosecutors aren’t in love with every weapon in their arsenal.
“This is a very good decision,” Colorado Attorney General John Suthers told me after the U.S. Supreme Court last week rolled back a federal statute commonly used in corruption cases against public officials and executives. “There are a lot of prosecutors out there who thought that was a very, very elastic statute.”
“When I got into the federal system,” said Suthers, who was U.S. attorney during George W. Bush’s first term, “that statute just gave me the creeps.”
The law in question — which was used to convict Enron’s Jeffrey Skilling, among many others — made it illegal to engage in a “scheme . . . to deprive another of the intangible right of honest services.”
Even that phrase — “the intangible right of honest services” — ought to give a citizen goosebumps. What could it possibly mean?
As Suthers explains, prosecutors themselves weren’t always sure. You should be able to read a law, he explains, and say, “Here’s what someone did wrong and here’s what the prosecutor has to prove.” But in practice, honest services fraud became “a general catchall for something questionable you did” — such as not disclosing a conflict of interest — even if it wasn’t explicitly illegal and you had little reason to think it might be.
By narrowing the law’s scope to cover only straightforward bribery or kickbacks, the Supreme Court scored a blow against overly zealous prosecutors determined to score political points against unpopular defendants. Three of the justices — Antonin Scalia, Anthony Kennedy and Clarence Thomas — would have gone even further and struck down the entire statute as unconstitutionally vague. More power to them.
If Congress wants to outlaw self-dealing in the political or business world, it should have to describe exactly what behavior is beyond the pale rather than leave it up to citizens to guess.
It’s not as if federal prosecutors don’t have plenty to keep them busy. In the past few decades, the federal criminal code has mushroomed in size — to the point that even former U.S. attorney general Edwin Meese (hardly a wallflower in his day on law-and-order issues) recently decried the trend. In a column he penned at the Heritage Foundation, Meese contends that the “average American” today is “far more vulnerable than ever before to being caught up in a criminal investigation and prosecution — and to actually being convicted and punished as a criminal — for having done something he did not even suspect was illegal.”
Part of the problem, Meese argues, is that “the criminal law has grown as broad as the regulatory state in its sheer size and scope.”
Such complaints are hardly confined to conservatives such as Meese. On this issue, in fact, the Heritage Foundation and the National Association of Criminal Defense Lawyers are on the same page. They’ve issued a joint report concluding that Congress is increasingly ignoring a “core principle of the American system of justice” — namely, “that individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct they know to be unlawful.”
In the 109th Congress (2005-06), for example, many of the new offenses enacted were “so vague, far reaching and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.”
Given this pattern, a single shot across the bow from the Supreme Court may do little to deter members of Congress apparently determined to criminalize yet more categories of behavior. One noxious weed has been yanked from the statute books, but the infestation, unfortunately, is growing.
E-mail Vincent Carroll at vcarroll@denverpost.com.
