Wednesday, October 7, 2009

Dishonest Honest Services Charges

The question has been asked, "What have the majority of the political prosecutions of Democrats by the Rove Republican Racket been based on?"

In a powerful opinion piece for the The National Law Journal, Randal D. Eliason answers the question and gives the reader a lot to think about.

What was a leading charge — and in many cases the only charge — against each defendant? Honest services mail or wire fraud, or conspiracy to commit honest services fraud. Honest services fraud, a sweeping charge with ill-defined boundaries, is rapidly becoming the corruption statute of choice for federal prosecutors. This trend should make everyone — not just corrupt public officials — uneasy.
In an honest services public corruption case, defendants are charged with using the mail or wires to further a scheme to defraud citizens of their intangible right to the fair, honest and impartial services of their public officials.
Lacking guidance from Congress, judges have struggled to limit the scope of a statute that potentially criminalizes any conduct that may be deemed "dishonest." Lower courts have splintered over the proper definition of "honest services," and judicially crafted rules and limitations vary across the country. Now use of the theory appears to be on the rise.
In recent years, the Depart­ment of Justice increasingly has used honest services fraud not only for state and local corruption but also to prosecute corruption involving federal officials, such as in the Abramoff investigation. This move has come as court decisions during the past decade made prosecutions under the federal bribery and gratuities law more difficult. Courts have required the prosecution to link a particular gratuity to a particular "official act" and have narrowly interpreted the term "official act" in the statute. By charging honest services fraud in federal corruption cases, prosecutors are able to avoid these holdings. Even in cases in which bribery or gratuities could be established, it will often be easier simply to charge the same conduct as an honest services violation and not worry about the more finicky bribery statute.
This development is troubling for several reasons. Conduct that may constitute corruption often scrapes uncomfortably close to the edge of legitimate fundraising, patronage and other political activities. There are many things some might consider dishonest or sleazy that are not actually criminal.

Read the full article here.