Saturday, June 26, 2010

Unintended Consequences....

Ah yes, as the calendar turns to Summer, we see the return of the “lightening bug,” the graceful flitter of the butterfly and yes, sad to say, the ugly specter of politicians helping out other politicians.

So THIS is a lesson for all those who’ve naively believed that “judges aren’t mere politicians.”

This clearly demonstrates the “Are too,” response quite well.

On Thursday, June 24th, the Supreme Court gutted one of the favorite tools of federal prosecutors' in the pursuit of corrupt politicians, thereby “doing a HUGE favor to fellow members of “the political class” (politicians), from the disgraced Rod Blagojevich (the Democratic Governor of Illinois) to the cash-freezing Rep. William J. Jefferson (D-La) to Joe Bruno, the disgraced former Republican State Senator of New York State.

Of course, the very SAME law has been the primary tool used to rein in a wide array of corporate cheaters, from super-lobbyist Jack Abramoff, to the likes of former Enron chief executive Jeffrey K. Skilling and disgraced newspaper magnate Conrad Black.

Since it was passed in 1988, the honest-services fraud law has been used in the prosecution of a wide array of fraud, “self-dealing,” and dishonest corporate and governmental action.

Defense lawyers have predicted a flood of litigation from those convicted under the law.

Justice Ruth Bader Ginsburg, writing for the court majority, said that upholding the law meant excluding the "amorphous category of cases" involving conflict of interest and self-dealing. The legislation, she said, "criminalizes only schemes to defraud that involve bribes or kickbacks."

All nine justices said prosecutors have stretched a federal statute so far that it makes it a crime to deprive the public or a company of the "intangible right of honest services."

Three justices (Antonin Scalia, Clarence Thomas and Anthony Kennedy) thought the statute was so vague as to be unconstitutional. But six said it could be saved by limiting its use to those involving bribes or kickbacks, not the self-dealing or conflict-of-interest schemes previously prosecuted.

In fact, Justice Scalia, writing in dissent went so far as to declare that the entire statute was so vague as to violate the Constitution's due-process clause.

Scalia admonished the court’s majority, claiming their "pose of judicial humility" in trying to preserve the statute by turning it into a prohibition of bribes and kickbacks is really just "wielding a power we long ago abjured - the power to define new federal crimes."

Come on! No high-minded phraseology? No legalistic poetry? Just, in effect, “There is no overriding legal authority,” on which to define “honest services.”


I guess it’s really true that “The only rules in politics is that there ain’t no rules.”

Think about it for a second, had the Supreme Court simply ruled on this matter a scant ten years ago, the Enron, Adelphia, Tyco and Arthur Anderson prosecutions, not to mention Martha Stewart’s case probably wouldn’t have moved forward...if they’d ruled on it 20 years ago perhaps Michael Milken wouldn’t have been convicted.

But HEY! How about that shiny, brand new “Get Outta Jail FREE Card” for all those corrupt politicians?!

“Victimless crimes...ahem...victimless crimes...cough, cough.”


I can actually understand that the law may be too vague to applied to business, but government officials should still be held accountable for providing "honest services." After all, we ALL know how to define that for elected officials.

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