Scalia Shines A Misplaced Spotlight on Honest-Services Fraud

Reading about U.S. Supreme Court Justice Antonin Scalia's criticism of federal prosecutors during the George W. Bush administration is a little like hearing David Mamet complain about the foul language in Glengarry Glen Ross.

Mamet, one of America's most acclaimed playwrights, wrote Glengarry Glen Ross, and his use of edgy language is central to the story of four desperate real-estate agents in Chicago.

Scalia, to a great extent, is responsible for the abuses of Bush prosecutors. After all, his vote in Bush v. Gore went a long way toward handing the presidency to Bush and leading to corruption of the U.S. Justice Department.

Perhaps that is why Scalia's dissent in a Supreme Court refusal to review a Chicago public-corruption case rings so hollow.

While rummaging around in the dark basement of American justice, Scalia has detected a legitimate threat. But he is shining his flashlight in the wrong corner.

The problem, Scalia says, is the honest-services fraud law itself--18 U.S. Code 1346. The statute is hopelessly vague, the justice says, and does not give potential defendants sufficient warning that certain behavior is criminal.

Scalia is right about this, as Scott Horton expertly points out in this piece on his No Comment blog at Harpers.org. But the same could be said of many other federal statutes. I'm not a lawyer, but my research indicates that the entire U.S. Code is famously and alarmingly vague.

Consider, for example, 18 U.S. Code 666, federal funds bribery. Like the honest-services fraud statute, 666 played a central role in the prosecution of former Alabama Governor Don Siegelman. If you consider yourself an everyday American, try reading 666 closely and see if you can figure out what it means. Imagine serving on a jury and trying to determine whether or not someone has violated that statute.

If Scalia is concerned about vague federal statutes, he should not stop at 1346. He might as well advocate rewriting the entire U.S. Code because almost all of it is clear as Mississippi mud.

Here is a little secret I've learned while trying to imitate a lawyer in the blogosphere: If you really want to understand federal law, you've got to study the case law. That task isn't easy, but if you put a little effort into it, you will find that most federal crimes are pretty well defined.

For example, our research team here at Legal Schnauzer produced this little number that explains honest-services fraud in a fairly succinct manner:

Mail Fraud: A Primer

And for good measure, our crackerjack researchers produced this little number on federal-funds bribery:

Bribery: A Primer

As Scott Horton points out, these laws were abused and used for political purposes in the prosecutions of Don Siegelman in Alabama and Paul Minor, Wes Teel, and John Whitfield in Mississippi. But the problem was not the laws themselves. The problem was the corrupt prosecutors and federal judges who ran roughshod over the law in the Siegelman and Minor cases.

Consider the honest-services mail fraud charge in the Siegelman case: The case law is clear that the public must actually be deprived of an official's honest services. But in appointing former HealthSouth CEO Richard Scrushy to a hospital-regulatory board, Siegelman tapped an individual who clearly was qualified to serve and had served under three previous governors. Therefore, the public was not deprived of Siegelman's honest services.

Consider the bribery charge in the Minor case: The case law is clear that this requires a "corrupt act." And this is defined as "inducing the official to violate his or her lawful duty." Minor clearly did not commit a corrupt act because the two state judges handling his cases, Teel and Whitfield, ruled correctly under the law. Minor's clients prevailed because, under the law, they should have. And that means no bribery occurred.

If Scalia wants to lead a rewrite of the entire U.S. Code, I say he should have at it. But such a painstaking task isn't necessary.

What is necessary is that we have honest federal prosecutors who prosecute crimes, not people. The problem in the Siegelman and Minor cases was not that prosecutors didn't know the law. They intentionally refused to follow it.

Our Justice Department will never regain the public's trust until the people who corrupted our courts are held accountable. That should be a top priority for Congress and the Obama administration.

And Antonin Scalia should be pushing for it, too.