Joe Bruno’s Defense

By Lora Como

The principal criminal statute under which Joe Bruno has been charged, “theft of honest

services,” is a murky law with a troublesome history. Congress enacted the statute in reaction to

a Supreme Court ruling in McNally v. U.S., 483 U.S. 350 (1987), that declined to interpret the

federal mail fraud statute as one that encompassed and protected the “intangible right of the

citizenry to good government.” Under the mail fraud statute, only tangible property rights could

be defrauded. The Court balked at the idea of the Federal Government “setting standards of

disclosure and good government for local and state officials.” Congress responded with the

enactment of 18 U.S.C. §1326 and declared that the phrase “scheme or artifice to defraud”

includes the fraudulent deprivation of the public’s intangible right to the honest services of

government officials.

Since its enactment, the lower federal courts have grappled with its meaning and little

agreement exists among the Circuits. The only thing that is clear is the ability of the law to

criminalize and ensnare, in the words of Justice Scalia, “a staggeringly broad swath of behavior.”

When the Circuits cannot reach any consensus on the meaning or proper application of a statute,

the Supreme Court will often grant certiorari to clear the confusion. However, the Court recently

refused to grant a writ of certiorari in a §1346 case, U.S. v. Sorich, 555 U.S. __ (2009), in which

Justice Scalia dissented. His opinion is a tidy summation of all that is wrong with 18 U.S.C.

§1346. Scalia writes,

If the “honest services” theory –broadly stated, that officeholders and employees owe a duty to
act only in the best interests of their constituents and employers –is taken seriously and carried to
its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to
vote for a bill because he expects it will curry favor with a small minority essential to his
reelection; a mayor’s attempt to use the prestige of his office to obtain a restaurant table without
a reservation…….Indeed it would seemingly cover a salaried employee’s phoning in sick to go
to a ball game.
Motive, as Scalia correctly points out, is the defining feature of a §1346 crime. Failure to act in

anything but the “best interests” of one’s clientele constitutes theft and dishonesty. Herein lies

the basis of the charges against Joe Bruno. Bruno’s indictment alleges that the public had a right

to his,

. . . disinterested decision making and full disclosure of the potential motivation behind, and
material information relevant to, his official acts, including full disclosure of conflicts of interest,
which would provide the citizens of the State of New York and other government officials with
the information necessary to evaluate his motivations for official acts. (emphasis added.)
Apparently, the Majority Leader’s failure to place himself on trial in the court of public opinion

constitutes robbery of the public’s right to “the information necessary to evaluate his motivations

for his official acts.” This is the act of a federal prosecutor who has the leeway to define

criminal behavior because a criminal statute fails to adequately identify the proscribed acts.

Scalia points out though that “it is practically gospel in the lower courts that the statute

does not ‘encompass every instance of official misconduct’”; however,

Why that is so, and what principle it is that separates the criminal breaches, conflicts and
misstatements from the obnoxious but lawful ones remains entirely unspecified. Without some
coherent limiting principle to define what ‘the intangible right to honest services’ is, whence it
derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing
prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any
manner of unappealing or ethically questionable conduct.
The Supreme Court originally declined to include the intangible right to honest services within

the ambit of mail fraud because of “the prospect of federal prosecutors’ (or federal courts’)

creating ethics codes and setting disclosure requirements for local and state officials,” which is

exactly what the prosecutor in Bruno’s case has done. Would the prosecutor have been satisfied

if Senator Bruno held an explanatory press conference after each legislative action? And if he in

fact did disclose yet took the same actions, is he still guilty of criminal wrongdoing?
 Such statutory vagueness violates due process. It is a “basic principle that a criminal

statute must give fair warning of the conduct that it makes a crime.” This is what is lacking in

§1346: Scalia correctly points out that “there is a serious argument that §1346 is nothing more

than an invitation for federal courts to develop a common-law crime of unethical conduct . . . it is

simply not fair to prosecute someone for a crime that has not been defined until the judicial

decision that sends him to jail.” Therefore, is it any wonder that the indictment against Joe

Bruno begins with an explication of state ethics laws?

Should Senator Bruno lose at the trial level, there is no excuse for the Supreme Court

justices to turn down an appeal “ in light of the conflicts among the Circuits; the longstanding

confusion over the scope of the statute; and the serious due process and federalism interests

affected by the expansion of criminal liability.” I join Justice Scalia in his view that “it is quite

irresponsible to the let the current chaos prevail.”

The Senator may well be headed to the Supreme Court for justice.