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Joe Bruno’s DefenseBy Lora ComoThe principal criminal statute under which Joe Bruno has been charged, “theft of honestservices,” is a murky law with a troublesome history. Congress enacted the statute in reaction toa Supreme Court ruling in
McNally v. U.S.,
483 U.S. 350 (1987), that declined to interpret thefederal mail fraud statute as one that encompassed and protected the “intangible right of thecitizenry 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 theenactment 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 littleagreement exists among the Circuits. The only thing that is clear is the ability of the law tocriminalize 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 recentlyrefused to grant a writ of certiorari in a §1346 case, U.S. v. Sorich, 555 U.S. __ (2009), in whichJustice 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 toact only in the best interests of their constituents and employers –is taken seriously and carried toits logical conclusion, presumably the statute also renders criminal a state legislator’s decision tovote for a bill because he expects it will curry favor with a small minority essential to hisreelection; 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 goto a ball game.Motive, as Scalia correctly points out, is the defining feature of a §1346 crime. Failure to act inanything but the “best interests” of one’s clientele constitutes theft and dishonesty. Herein liesthe basis of the charges against Joe Bruno. Bruno’s indictment alleges that the public had a rightto his,. . . disinterested decision making and full disclosure of the
 potential motivation
behind, andmaterial 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 withthe 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 opinionconstitutes robbery of the public’s right to “the information necessary to evaluate his motivationsfor his official acts.” This is the act of a federal prosecutor who has the leeway to definecriminal 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 statutedoes not ‘encompass every instance of official misconduct’”; however,Why that is so, and what principle it is that separates the criminal breaches, conflicts andmisstatements from the obnoxious but lawful ones remains entirely unspecified. Without somecoherent limiting principle to define what ‘the intangible right to honest services’ is, whence itderives, 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 anymanner of unappealing or ethically questionable conduct.The Supreme Court originally declined to include the intangible right to honest services withinthe 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 isexactly what the prosecutor in Bruno’s case has done. Would the prosecutor have been satisfiedif Senator Bruno held an explanatory press conference after each legislative action? And if he infact did disclose yet took the same actions, is he still guilty of criminal wrongdoing?
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