In today’s Politico, attorneys Peter Zeidenberg and William Minor point out that the Public Corruption Prosecution Improvements Act of 2009, which recently passed out of Sen. Patrick Leahy’s Senate Judiciary Committee, authorizes $100 million for new federal prosecutors and agents to root out “public corruption” using the federal “honest services” statute and other overly broad federal statutes.
Under this amorphous, poorly worded statute, anyone can be subjected to 20 years in prison for allegedly depriving anyone else of “the intangible right of honest services.” What this right encompasses – as well as what it means to deprive someone of it – is left undefined in the statute. The substance and scope of this so-called criminal offense have been limited only by the imagination of federal prosecutors and judges.
If you were a small business owner, how would you react upon hearing that your state legislature has enacted a new criminal offense that states: “The government is hereby empowered to punish as a criminal whoever engages in improper business practices” – especially once you learned that the legislature included no language restricting “improper business practices” to conduct that is truly wrongful?
What might you think about the ongoing security of your business and your own personal liberty if you read that prosecutors had used this new offense to convict small business owners for relatively trivial wrongful conduct, as well as for some conduct that did not seem wrongful at all? What if “offenses” under the new law were punishable by 20 years in prison?
The foregoing essentially describes the specter presented by the federal offense of honest services fraud. Given the vast scope of the honest services statute’s vague and broad language, it should come as no surprise that Zeidenberg and Minor identify a pattern of troubling prosecutions. “Many of the federal public corruption cases of recent years,” they write, “have been constructed almost entirely from building blocks made up of individual acts – such as the provision of meals, tickets and campaign contributions – that, in many instances, were entirely lawful at the time provided.” (!)
Rather than requiring that a public official have received a bribe or a similar quid pro quo in order to support an indictment, some Justice Department officials have prosecuted individuals on the specious theory that merely receiving (or giving) a “stream” of things of small value constitutes honest services fraud. What and how many items must be received (or given) in order for that “stream” to constitute a crime no one knows for sure.
When they are touted as being “tough on public corruption,” breathtakingly broad criminal laws might sound good to some folks who have a limited view of the purpose and importance of the rule of (criminal) law – or who have unlimited confidence in the fair-minded good sense of government officials. But such laws are formulas for unjust criminal prosecution and punishment.
Before Congress spends another $100 million of taxpayer money on new federal agents to figure out how to prosecute things none of us ever thought might be criminal, the honest services fraud statute and similarly broad “public corruption” offenses should be precisely defined and narrowly crafted to address specific wrongful conduct that cannot be charged under any of the other 4,450 criminal offenses already on the federal books.