Balance of Prosecutorial Power

The Supreme Court has narrowed a federal law used by prosecutors in corruption cases. Any benefit the ruling gives to miscreants should inspire stronger new laws.

Comments: 32

  1. Let me see, the Congress making self dealing illegal. Wouldn't that in it's self be a conflict of interest?

  2. Furthering one's "own undisclosed financial interest while purporting to act in the interest of others" underlines how thoroughly corrupted American society has become.

    Words like "honor" and "integrity" are marketing slogans sharpies use to manipulate naive rubes into spending, or worse investing, their hard-earned dollars in what every seller knows is garbage.

    Individuals who actually do conduct themselves with honor and integrity are suckers whom the selfish, greedy slobs who run our rapidly crumbling world exploit for all that they can squeezed out of them.

    Americans have become so busy looking out for number one we have become a nation of dogs: eating weaker dogs and being eaten by stronger ones; a pathetic excuse for a superpower.

  3. The honest services ruling served a purpose for a time, namely to address an obvious flaw in the mail fraud statute--frauds were being committed, but without harm to a tangible property interest, federal prosecutors had no viable statutes under which to charge a crime. This is an example of the Court acting to fill holes in the law; it is technically permissible under a stretched definition of statutory construction and judicial functioning, but, it really ought to be the sort of thing now turned-over to congress, for clarity's sake if nothing else.

    But the cycle will continue. Statutes can't cover everything.

  4. Before we rush to fill federal penitentiaries with white collar criminals for the rest of their natural lives, perhaps we should consider legislation that clearly proscribes certain practices which contributed to the financial meltdown that still impairs our economic growth. Lets get busy fixing what we can to make things better and remember vengeance is a dish best served cold.

  5. It difficult to imagine that the mostly corrupted members of Congress would pass a law which was anything but so narrowly defined as to allow all their usual practices while appearing to crack down, or so nebulously defined - as the quashed by the Court - as to make meaningful prosecution possible. Our Congressmen knows who butters their bread best, and they are not apt to change it.
    Until America changes its real values and ceases to honor corruption by changing its name to, say, "campaign contributions" etc., there is little reason to hope that by law or by custom, things will change.

  6. But how do we get Congress to pass a stronger law? And if they actually should do so, will the conservative majority on the Supreme Court throw it out? Given the three votes to throw out the current version completely, there doesn't seem to be much hope for something better. Now that money rules, any form of honest government in Washington becomes increasingly mythical.

  7. A more thorough investigation of the Blago-Obama connection should begin along with the question of Fitzgerald halting the investigation before it was complete. The country was *deprived of honest services* and then some in that case.

  8. The term that is missing in the current discussion is "negligence". We do need new legislation, but that legislation should not, as the "honest services" law attempts, say "if you don't do good you must be doing bad". Instead it should mirror the definition of fraud, it should define the criminality of "dis-honset service". That's where the concept of negligence comes in. the legislation should make it a felony to willfully neglect to do your job in order to pursue other interests. The magnitude of that crime should depend on the magnitutude of the harm caused. If you are neglecting to take perfectly good paper clips off documents before they are disposed of then you are neglecting to guard the company's assets but only to the tune of a few cents. If you are neglecting to ask questions on why your company seems to be making billions and producing nothing, then as an executive, you are risking the total collapse of the company.

    When we go to the most legendary case of this, we do not say that his Empire was denied his honest services when we say that Nero fiddled while Rome burned. We say he neglected his responsibility.

  9. I suppose the good news is that it only took twelve years for some of the Justices to (have the opportunity?) to point out that this law has no place in a just society.

    Now, if only we could find our way to a similar view of the regular misuse of the Commerce Clause.

  10. The mass of American public seemsto generally the notion that there is one law for them and another (or none at all) for the rich and powerful. This decision will help confirm that notion.

  11. If the concept of "dishonest services" is so vague, how could a jury find Mr. Skilling guilty beyond a reasonable doubt? Were the jury all sheep, meekly following flawed instructions from the judge?

    Mr. Skilling provided dishonest services, though maybe not the exact ones the prosecution identified. Maybe he did not take a bribe, nor indulged in self-dealing or conflicts of interest, but the CEO of ANY company is expected to know sound accounting, and apply that knowledge, honestly, in the performance of his duties. Honest services includes honest accounting. You cannot get through the MBA program at Harvard without knowing accounting. Among Mr. Skilling's responsibilities was the duty to ensure sound accounting at the company he led. This is not an area that one can delegate to Arthur Andersen and then wash one's hands of, Pontius Pilate-style.

    The Sarbanes-Oxley Act makes this explicit, though that should not have been necessary.

  12. Exceedingly narrow and precise interpretations of law and regulation by conservative jurists require high expertise in the crafting and implementation of such law. Remember that when you hear complaints about the pay of government officials and civil service.

  13. Oh, the really "smart" people need to become "really clever" to find loopholes in any new law. That has been the case with almost all laws dealing with financial facets. Now we cannot prosecute Chaney who got a 34 million dollar bribe to spar oil industry from any oversight. Of course, that would not have been possible because we could not and we should not an we did not expect any "honest" services from him. Hey, he is a republican stooge of the big money. So the Spreme court did the right thing in throwing out this facade of "honst services".

  14. Arrogant. agressive, abusive prosecutors already have far too much power and far too little responsibility for their misconduct. Official misconduct in any way, shape or form should be considered the functional equivalent of TREASON and be punished accordingly.

  15. Bad law does not bring justice. This was bad law--vague and open to abusive prosecution. Good ruling. I might even here agree with the three who would have throw in all out.

  16. If they can have laws against pornography, they we certainly can have laws against profiting by knowingly giving bad advice to your clients while pretending to sell them a service.

    Pornography is in the eye of the beholder, but working against your clients interests to make a buck is not!

    What Goldman Sachs did in creating a poison pool of synthetic sup-prime mortgages CDO's, is clearly wrong, and it is the kind of double dealing that the law intended to make illegal.

    If Congress can't come up with a law that passes constitutional muster, it is because they have been bought off by the banks and stock brokers and really can't get up the courage to make this kind of activity illegal.

  17. What exactly is unclear about an "intangible right to honest services"? I know exactly what that means. It means that businesses do not have a right to cheat their customers. Call me a fool, but yesterday's ruling makes it appear that the Supremes wish to endorse corporate dishonesty.

  18. There are specific examples of a "deprivation of honest services" given in the comments I've read above. Great! Why aren't those examples actually codified in the law, instead of only seeing it while squinting at the statute, head cocked?

    Let's be perfectly blunt: the law as it stood meant that because I took a minute off of my job to type this message, I was guilty of "depriving" my boss of "Honest services." You are all too, I imagine, unless you're all unemployed. A law phrased to mean anything isn't a law, it's a legal bludgeon ripe for abuse.

    Is that the sort of law you'd let on the books for our alleged evil corporate overlords to torment us lowly peons?

  19. We don't need more laws. We need fewer laws. You have a situation where you have young Justice Department attorneys looking to advance their careers. They are setting up innocent people for supposed crimes that are dubious. The attorneys do not care about anything other than what offer they will get when they leave the Justice Department. Who is kidding who.

  20. Laws which are dependent upon a prosecutor divining what was the intent of a person/firm are inherently faulty... Objectively you can only discern what a person/firm did - Did he or did he not exceed the speed limit?

    If traffic law was written the way the honest offices law is written, the police could write a ticket on a person who was going faster than the other drivers but did not exceed the speed limit... The officer's opinion would be that the driver intended/wanted to speed but simply hadn't been caught, therefore he was ticketed for his intentions...

    Such laws are inherently unconstitutional...

    dr. o

  21. Maybe the law was too vague, but even with its broad reach it's disturbing how many bad actors on Wall Street and America's corporate suites have blithely walked away after doing serious damage to consumers, shareholders, the economy and ultimately, our faith in the system. Then again, I suppose it's just business as usual in the world's largest banana republic.

  22. Another Step Towards Medieval Originalism

    While Ginsburg and the others may be correct in seeking clarification, the Scalia-Roberts court, the Black Robes of Opus Dei, have a more explicit revision of the law in mind. Ultimately, they would like to see white males above a certain income level, The Patriarchs or Optimates, exempted from plebeian prosecutions and taxations of any sort. Once free of such pernicious leveling the incorporated Optimates will be able to run society properly and with a firm hand.

  23. Eighty years ago, there were few federal criminal statutes. Today the lawbooks strain at the electronic seams trying to hold them off. And if there aren't enough Americans breaking them, we import foreign criminals whose acts supposedly have had an effect in the US. Something we would not tolerate for Americans to be accused of abroad.

    This one for sure was too vague. Make it very clear what it means, and what the accused has to do to be convicted of it.

  24. If you want to know why the Supreme Court's decision here was absolutely right, google the Cyril Wecht case. Public court records show that the feds charged him with 23 federal felony counts (each one worth up to 5 years in federal prison) for sending 23 short personal faxes from the fax machine at the county office where he worked. Those faxes he sent cost the county less than $4, but the feds spend hundreds of thousands, if not more, of the taxpayers' money prosecuting him for sending them. After the Skilling ruling, senseless and vindictive prosecutions like that can't happen anymore.

    @ Nathaniel (comment 8), negligence is not fraud--the law is clear on that--because fraud only exists where there is an **intent to defraud** someone. Negligently doing your job is a much lower bar. By definition, negligence doesn't include any such intent. So it wouldn't make sense, and most likely wouldn't pass muster with the Supreme Court, to define negligence as fraud in this (or any) context.

  25. Corruption is not a crime in the United States. It has been officially decided- those with wealth and power can no longer commit crimes.
    God bless America and the rule of law (for some)!

  26. Legislating against corrupt practices by public officials, though an essential step to weed out corruption from public life, yet how could such laws serve the desired purpose when the legislators under the influence of donors tend to keep such laws vague or with enough loopholes as to allow the miscreants go scotfree. The recent Supreme court judgement, lifting the ceiling on campaign funding by the corporations and working class unions has virtually allowed a big role of money in politics, and thereby turning legislators more as the bidders for special interest groups than the representatives of people. In such a situation it's really difficult to define as to what constitutes a corrupt practice in public life.

  27. If you run a cash register and you pocket a nickel you can rightly be fired. If you run a large company into the ground, putting thousands out of work, destroying millions of dollars of investment while keeping millions for yourself you're a captain of industry. Yes, the rules are different for the rich.

  28. For those who think the law was not unconstitutionally vague, I ask:

    Would you agree with replacing the speed limit with a law that prohibits driving at an "imprudent speed?"

    Would you agree with replacing the income tax rate with an income tax law that requires each taxpayer to remit his or her "fair share of income taxes in light of all relevant circumstances" (where failure to do so results in criminal sanction)?

    Would you agree with a law that criminalized all "unethical or immoral behavior" as assessed by the prosecutor and jury?

    If you answered no to any of these hypotheticals, then you should agree with the Supreme Court's decision.

  29. The fact that it was a 9-0 decision really tells you how bad this law was/is.

    Interesting to note that the judge the pundants call the most radical conservative (as if there is such a thing), Justice Scalia, is the best friend for the criminal defendant, because he actually follows the Constitution and holds prosecutors' feet to the fire. The leftist jurists (Bader Ginsberg, Stevens, Sotomayor) are awful when it comes to criminal defendants and criminal procedure. They tend to side with "victims" and the government, which is contra their oath.

  30. Siegelman was ALWAYS innocent. That was nothing but a disgusting joke of a witch hunt by lying hypocrite Rethugs. Thankfully this ruling could help Siegelman. He should have NEVER been prosecuted, make that persecuted, in the first place.

    That said, Skilling a CROOK, totally guilty, and he deserves to stay in prison. I hope this ruling does NOT help him one single bit.

    Jill Duncan
    Denver, CO

  31. Dear Dr. O:

    You said that "Laws which are dependent upon a prosecutor divining what was the intent of a person/firm are inherently faulty... Objectively you can only discern what a person/firm did - Did he or did he not exceed the speed limit?"

    On the contray, intent is "divined" all the time - although ultimately by the jury not the prosecutor. In any and all cases where intent is an element of the crime charged, prosecutors must prove that element to the jury beyond a reasonable doubt in order to get a conviction. Hence, for example, to get a murder conviction, the prosecutor must prove that the accused intended not simply to injure the victim but in fact to murder him.

    With a speeding ticket, on the other hand, intent is not an element of the offense.

  32. " The Supreme Court’s unanimity sends a message to state and federal lawmakers to act now." ....which means, of course, that the lawmakers will go through all sorts of contortions to avoid acting now. If there is one thing that the systematically corrupt want it's for there to be great areas of ambiguity and fog surrounding all laws limiting their access to cash flow. All the current interpretations of campaign contribution laws, financial discourse laws, and now "honest service" laws insure that our nation's march towards unrestricted legalized corruption will proceed apace. Welcome, my fellow Americans, to the historically proven ways of how empires die.