Corruption

What Does It Take for Republicans to Recognize the Perils of Excessive Prosecutorial Discretion?

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In a recent Forbes column, Reason contributor Harvey Silverglate notes that the conviction of Joseph Bruno, former majority leader of the New York State Senate, for "honest services" fraud will "almost certainly" be overturned now that the Supreme Court has said the charge should be reserved for cases involving bribes or kickbacks:

Influential voices are nonetheless calling for his conviction to remain, or for the feds to find new grounds on which to charge him. Yet these commentators, latching on to the avenging-prosecutor-versus-perfidious-pol angle, miss what's really at issue: It is not a question of whether one likes what Bruno did; it's a question of whether citizens of a democratic state, through their elected representatives, will be allowed to dictate where the line gets drawn between lawful and illegal political activities—or whether that line will be imposed from on high by the federal Justice Department.

Over at The Daily Caller, former congressman John Doolittle defends another man convicted of honest services fraud: his former legislative director, Michael Ring, a lobbyist associated with Jack Abramoff. After failing to obtain any convictions in a 2009 trial, the Justice Department tried Ring again, and last month he was convicted of five felonies, including three counts of honest services fraud. From the A.P. account:

Justice Department prosecutors Nathaniel Edmonds and Peter Koski argued that Ring, a former aide to retired Rep. John Doolittle, R-Calif., gave public officials expensive meals and exclusive event tickets so that eventually they would pay him back with favors for his clients. Their evidence included Ring's boastful e-mails with other team members.

"Instead of putting money in the public officials' pockets, they were putting expensive lunches and dinners on their plates and putting high-priced drinks in their hands," Koski said in closing arguments.

In one e-mail prosecutors quoted, Ring e-mailed a colleague sitting in a box seat at the NCAA championship basketball tournament with then-Attorney General John Ashcroft's chief of staff, "Glad he got a chance to relax. Now he can pay us back."

Ring was convicted of giving an illegal gratuity to another Ashcroft aide, Robert Coughlin, when he took him to a Washington Wizards-Chicago Bulls basketball game in 2003. Prosecutors said that was to reward Coughlin for contacting an immigration official to help expedite foreign student admissions to a Hebrew school Abramoff had opened. Prosecutors showed jurors a photo during closing arguments of Ring and Coughlin sitting in $250 seats a few rows from courtside while Michael Jordan sank a basket.

He was also convicted of giving bribes to help Indian tribes with casino interests and helping to arrange a $5,000 "no work" job for Doolittle's wife, Julie, as a kickback to the congressman. The Doolittles were named coconspirators in the case but never charged.

I'm not sure the Supreme Court's ruling helps Ring, since his case, unlike Bruno's, did involve bribery allegations. Doolittle argues that Ring was convicted for what was business as usual in Washington, where lobbyists routinely entertained the people they sought to influence. At least some of Ring's offenses do seem to fall into a gray area where the quid pro quo is murky. In any event, as self-serving as Doolittle's argument may be, it provides reason to hope that Republicans who otherwise would be inclined to take the government's side on criminal justice issues are beginning to see the danger posed by giving prosecutors too much power. Notably, Antonin Scalia, who has a (largely undeserved) reputation for being insensitive to defendants' rights, was the justice who was most passionate about striking down (and not merely revising) the honest services statute because it was so hard to say what it covered. For his part, Doolittle says "these prosecutions [of Ring and former House Majority Leader Tom DeLay] have shaken my confidence in our nation's criminal justice system and convince me that the incoming Congress should conduct careful oversight over the abuse of prosecutorial discretion."

[Thanks to Julie Stewart for the Daily Caller link.]

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  1. “He [Ring] was also convicted of giving bribes to help Indian tribes with casino interests and helping to arrange a $5,000 “no work” job for Doolittle’s wife, Julie, as a kickback to the congressman. The Doolittles were named coconspirators in the case but never charged.”

    Yeah, I would call Dolittle’s argument “self-serving,” but I would also give a cheer for Scalia’s argument for eliminating the “honest services” statute. Way to go, Nino!

  2. Yeah, now republicans are going to be defending the girlfriends of crack dealers who get caught up in bullshit ‘conspiracy’ charges made possible by ambiguous laws and ambitious, over zealous prosecutors.

    Is your head made of wood, Sullum?

  3. Doolittle says “these prosecutions [of Ring and former House Majority Leader Tom DeLay] have shaken my confidence in our nation’s criminal justice system and convince me that the incoming Congress should conduct careful oversight over the abuse of prosecutorial discretion.”

    I should be generous, and take the “better late than never” position.

    Unfortunately, I suspect the Hon Mister Doolittle still couldn’t give a fuck if a teenaged dope dealer (from the wrong sort of family) goes to prison for ten years.

  4. “What Does It Take for Republicans to Recognize the Perils of Excessive Prosecutorial Discretion?”

    Not this case.

    “The Doolittles were named coconspirators in the case but never charged.”

  5. For his part, Doolittle says “these prosecutions [of Ring and former House Majority Leader Tom DeLay] have shaken my confidence in our nation’s criminal justice system and convince me that the incoming Congress should conduct careful oversight over the abuse of prosecutorial discretion.”

    Translation: We need to make sure that abuse of prosecutorial discretion only happens to the little people.

  6. I’m reading Three Felonies a Day right now. It’s pretty terrifying.

  7. “it’s a question of whether citizens of a democratic state, through their elected representatives, will be allowed to dictate where the line gets drawn between lawful and illegal political activities?or whether that line will be imposed from on high by the federal Justice Department.”

    False dichotomy fallacy: The federal Justice Department is also run by the people’s elected representatives, silly.

    1. I don’t recall voting for or against Eric Holder.

      1. If you refuse to vote that’s your problem.

    2. Umm, it’s not that easy. If you are saying Congress can make the laws and rules they have to follow, that is technically true, but it’s very difficult to make them follow, difficult to exercise oversight, etc.

  8. What Does It Take for Republicans to Recognize the Perils of Excessive Prosecutorial Discretion?

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!

    Best Friday Funny ever Jacob!

    The implied “this could be possible, really”, the excellent artwork. Bring this guy back EVERY Friday!

  9. How is a good way to throw public officials in jail a bad thing?

    I think I am missing something about this honest services fraud.

  10. Ring deserves to be convicted for shear stupidity. DON’T PUT INCRIMINATING STUFF IN YOUR EMAILS MORON!

    1. That’s the part to me that isn’t “murky” at all as far the quid pro quo argument is concerned.

      He clearly and admittedly was expecting to receive something back for his gifts.

      What is so “murky” about that?

  11. I’m not quite clear on what’s going on here. Its judicial overreach to throw some scumbag lobbyists and politicians in jail? I think prosecuting these guys is exactly where we should have prosecutorial ovvereach. I eagerly await a trial for Charlie Rangel.

    1. The Joe Bruno prosecution was pretty much a political vendetta begun by Wicked Eliot Spitzer (who even had the state police spy on Bruno). While I’m glad that Client 9 was run out of office in disgrace, why couldn’t it have been for any of the evil things he did?

      1. It certainly isn’t obvious to me; is the Bruno prosecution trivial?

  12. “….Ring’s offenses do seem to fall into a gray area where the quid pro quo is murky….”
    Is it possible to pass a law which makes rent-seeking illegal?
    I doubt it. The obvious solution is to make the rent un-available from the politicos. That’s either a ways off or not possible, depending on whether you’re an optimist or a pessimist, but forelock-tugging over a rent seeker getting whacked for probably less time than a black kid with an ounce of dope seems to be a bit of misplaced concern.

  13. …Scalia, who has a (largely undeserved) reputation for being insensitive to defendants’ rights…

    The “new [police] professionalism” while ruling against the 4th amendment is a hard thing to shake. Kind of like Rudy G’s statement to the effect that freedom means obeying authority.

  14. Jacob,

    I get your point but did you have to (sort of) defend Scalia? He wouldn’t review a defendant’s death penalty conviction based on actual innocence because the defendant had already had his appeals. His Fourth Amendment jurisprudence is appalling. You made a great point. Don’t dilute it.

  15. It’s easy to be an arm-chair juror when you’re no where near the court house. I sat through every day of Kevin Ring’s trial and saw absolutely no evidence of quid pro quo bribery of elected officials. I heard about the scummy lobbying techniques of the 1990s and read a lot of juvenile emails from Kevin Ring but neither amounts to a criminal offense. Honest services fraud is a murky and complicated statute and the jurors said so when interviewed afterward. One of them said the whole case was a waste of time and money. I concur.

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