So I agree with Scalia, for once

The United States Codes is filled with laws, both civil and criminal. Some of the criminal laws are just downright scary. Many times, we lawyers cannot even understand what these criminal laws mean, and yet the Justice Department is running around putting people in prison under these laws. I’m talking about George Orwell and Franz Kafka kind of stuff. Many of these laws fall into a category that is commonly referred to as “public corruption.” Within these “public corruption” statutes, there is one that is particularly mysterious and it criminalizes public officials who deprive citizens of the “intangible right” to their “honest services.” Did you get that? Perhaps you should read it again.

At one time or another, I bet every one of us thinks that our elected officials have deprived us of their “honest services.” And while each of us may think that our public officials have deprived us of their “honest services,” nobody has a clue as to what this really means. So who gets to decide? The Justice Department and its “Public Integrity Section” which is currently led by William Welch (if you read my previous post you’ll know that Welch and other members of his Public Integrity Section were recently held in contempt of court for lying playing dirty in a “public corruption” case. This gives me great discomfort. So we have laws to put people in prison based on the deprivation of “honest services” and worse yet we have federal prosecutors from the Justice Department who can’t seem to provide their own “honest services” to our courts of law.

This past Monday the Supreme Court turned down an appeal from three former Chicago City officials. Sorich v. United States, 08-410 (decided February 23, 2009). Federal prosecutors charged the three men for depriving citizens of their “honest services” because they hired politically favored individuals. As you can see, there isn’t much of a standard here. Basically, the Public Integrity Section of the Justice Department just picks who they want to go after and then they simply pull out the old “honest services” book and throw it at the helpless victim. The victim will, of course, hire lawyers, go to court, file motions, cry, whine, and scream about the law but nobody will hear him.

So the three Chicago officials were convicted and sent to prison. They appealed all the way to the United States Supreme Court who turned down their case. Justice Scalia was the only member of the Supreme Court who wanted to hear their appeal. In his dissent from the denial of certiorari, Scalia said this law is so vague and broad that it makes criminals out of a public employee who calls in sick “to go to a ball game.” Scalia is right on point when he says

what principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials . . .

This law is definitely dangerous, to say the least. And perhaps it is for congress to re-write the law, but in the meantime it is the role of the judiciary to stop this madness. Or, as Justice Scalia wrote in the final sentence of his dissent, “it seems to me quite irresponsible to let the current chaos prevail.”

So I agree with Scalia, for once.

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