Among the most elastic of federal criminal laws is Chapter 63 of 18 U.S.C., prohibiting fraud by use of the mail and various other hooks thought sufficient to bring the scam within federal jurisdiction (wire, radio, TV, banks, securities ...). In 1988, Congress enacted section 1346, expanding the covered frauds to include "a scheme or artifice to deprive another of the intangible right to honest services."
The vagueness of this statute and the expansiveness with which some U.S. Attorneys have applied it has drawn considerable criticism. The Federalist Society had this event at its convention last November. Today's WSJ has this article by Dan Slater discussing the application of the law to such diverse figures as ex-Gov. Rod Blagojevich, former NY Senate leader Joe Bruno, and LA Cardinal Roger Mahoney.
Vagueness is a problem, but not as applied to Blago.
The vagueness of this statute and the expansiveness with which some U.S. Attorneys have applied it has drawn considerable criticism. The Federalist Society had this event at its convention last November. Today's WSJ has this article by Dan Slater discussing the application of the law to such diverse figures as ex-Gov. Rod Blagojevich, former NY Senate leader Joe Bruno, and LA Cardinal Roger Mahoney.
Vagueness is a problem, but not as applied to Blago.
The classic case on vagueness is Parker v. Levy, 417 U.S. 733 (1974), an early opinion of Justice Rehnquist. Levy was court-martialed for, among other things, violating a section of the UCMJ against "conduct unbecoming an officer and a gentleman." That certainly is vague, and I may or may not have violated that statute myself. (We'll never know; the statute of limitations has run.) There was nothing vague about its application to Levy though. He exhorted enlisted men to disobey their orders, and no one could fail to know that wasn't kosher. Much of the opinion is about the special status of the military, but the same rule has been applied to nonmilitary cases. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 58-59 (1976).
Which brings us back to Blago. However, broad and indistinct a prohibition against denial of honest services may be, putting a U.S. Senate seat up for auction to the highest bidder certainly comes within it.
Looking forward, what should Congress do? Garden variety scams should be matters of state law, not federal, and it shouldn't matter whether a Ponzi scheme is conducted by U.S. Mail or by FedEx. Congress should get rid of these silly federal hooks that are nothing more than excuses to extend a federal criminal law to ordinary crime and limit the federal cases to those that genuinely involve federal interests.
One legitimately federal case is a scam spanning multiple states and of a magnitude that it really impacts the nation's financial system, e.g., Bernie Madoff.
The second genuinely federal case is corruption in state government. As a theoretical matter, a state official who dispenses favors for bribes deprives the honest people of the state of equal protection of the laws, justifying federal legislation under the power vested in Section 5 of the Fourteenth Amendment. As a practical matter, the people in control of state government are not going to be investigated or prosecuted by the state, so it's the feds or nobody.
Congress should pass a law against bribery by state and local government officials, pure and simple.
Which brings us back to Blago. However, broad and indistinct a prohibition against denial of honest services may be, putting a U.S. Senate seat up for auction to the highest bidder certainly comes within it.
Looking forward, what should Congress do? Garden variety scams should be matters of state law, not federal, and it shouldn't matter whether a Ponzi scheme is conducted by U.S. Mail or by FedEx. Congress should get rid of these silly federal hooks that are nothing more than excuses to extend a federal criminal law to ordinary crime and limit the federal cases to those that genuinely involve federal interests.
One legitimately federal case is a scam spanning multiple states and of a magnitude that it really impacts the nation's financial system, e.g., Bernie Madoff.
The second genuinely federal case is corruption in state government. As a theoretical matter, a state official who dispenses favors for bribes deprives the honest people of the state of equal protection of the laws, justifying federal legislation under the power vested in Section 5 of the Fourteenth Amendment. As a practical matter, the people in control of state government are not going to be investigated or prosecuted by the state, so it's the feds or nobody.
Congress should pass a law against bribery by state and local government officials, pure and simple.
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