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The pace of American political news is increasingly driven by investigations, subpoenas, indictments, trials and verdicts. This resource a “The law” is deviating from normal politicsand one result is that former federal prosecutors, who tell us more and more current tent guests on cable television.
The trend has underlined the temptation of the prosecution to cross self-justice. Federal law enforcers seem to get a thrill out of finding new ways to prosecute politically unsavory people who have misbehaved, even when their behavior wasn’t clearly illegal.
The good news is that the Supreme Court is bucking this trend, and lower courts may be starting to follow suit. In a pair of 9-0 decisions this month, the judges convicted two men prosecuted by the Southern District of New York under U.S. Attorney Preet Bharara, who became a darling of the media for his campaigns against Wall Street and Albany and ostentatious challenge from the Trump White House.
In one case, Joseph Percoco, between two stints as a top aide to New York Gov. Andrew M. Cuomo (D), was paid $35,000 by a real estate development company to lobby a state regulatory agency on the company’s behalf. He was convicted of “honest services fraud.”
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Honest services fraud can clearly cover bribes to public officials. But Percoco was not a public official at the relevant time, and the jury was instructed that a private citizen can be guilty of defrauding the public if the citizen has sufficient influence.
All the judges agreed: That instruction was too ambiguous. Turning past (or future) public service into financial gain may be unethical, but it’s not uncommon. Prosecutors’ sweeping interpretation of the law would give them too many targets to know when their behavior crossed the criminal line.
In the second case, a New York developer, Louis Ciminelli, helped design a nonprofit bidding process to ensure his company would be selected. Wire fraud involves taking the victim’s “money or property.” But Ciminelli was charged with wire fraud and convicted on the theory that he deprived the nonprofit of “financially valuable information.” Once again, the judges told the prosecutors had cast too wide a legal net“Because the theory treats mere information as a protected interest, almost any deceptive act could be criminal,” Justice Clarence Thomas wrote.
These decisions are unanimous part of a pattern. Last term, the judges ruled by two doctors convicted under the Controlled Substances Act of writing bad prescriptions because prosecutors watered down the law’s intent requirement. (Justice Stephen G. Breyer wrote the opinion.) In 2020, the court launched the 2016 “Bridgegate” fraud convictions of aides to Chris Christie, the Republican governor of New Jersey at the time, because prosecutors had incorrectly defined closing traffic lanes as taking property. (Justice Elena Kagan wrote the opinion.) In 2016, the judges reversed the corruption conviction of former Virginia Gov. Robert F. McDonnell because of prosecutors’ overly broad definition of an “official act.” (Chief Justice John G. Roberts Jr. wrote the opinion.)
The vote in each of these three cases? 9-0, 9-0, 9-0.
Lower courts have tended to accept federal prosecutors’ expansive theories of criminal liability, especially when the defendant clearly did something untoward. Because the Supreme Court doesn’t usually hear appeals until years after a trial, it may be less swayed by moral outrage and better positioned to see the constitutional threat of vague laws.
But the lower courts may finally be getting the message from the judges. The day before the Supreme Court’s recent New York decisions, a panel of the US Court of Appeals for the 1st Circuit in Boston: with a vote of 3-0 – overturned the honest services fraud and other convictions of two parents who paid large sums to get their children admitted to private colleges, part of the “Varsity Blues” admissions scandal that led to dozens of indictments and sentences.
In the 1st Circuit case (like the Supreme Court cases mentioned above), the dispute was not primarily about what the defendants did: “guilt” or “innocence” in the actual crime sense. It was about whether prosecutors had stretched the laws to criminalize things that might not be crimes. The 1st Circuit concluded that it did. According to the prosecution’s dubious theory of the case, the universities were both the victims of both parents’ bribes and the intended recipients of the bribes.
Criminal prosecution is not the only way to punish ethical violations when the law is murky. There are often lawsuits, dismissals and professional sanctions, or, in the case of politicians, elections and impeachments. And states typically have broader criminal jurisdiction than the federal government.
But federal prosecutors have professional and institutional incentives to expand their powers. Andrew C. McCarthy, a former federal prosecutor in the Southern District of New York who writes for National Review, tells me that in his old office, prosecutors “are encouraged to be creative, encouraged to work the edges of statutes”.
The private economy prioritizes creativity, McCarthy notes. Knowledge class professionals are trained to move forward by thinking outside the box. But government is not the private economy. When it comes to prosecutions, the drive to push boundaries and break new ground can collide with “the principle that the average person should understand what the law prohibits,” as McCarthy puts it.
While creative theories in business and technology tend to promote economic progress, creative theories of criminal culpability tend to enlarge the federal government and erode civil liberties over time. Political prosecutions are a danger, but so is the overburdening of ambitious prosecutors and media pundits whose primary interest is their own advancement and notoriety. Americans may need to worry more about the propensity of prosecutors to deprive the public of honest services when they push the limits of the law.
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