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