The Supreme Court, Conrad Black and Joe Biden's Bad Idea

Posted by: Peter Roff on Thursday, December 17, 2009 at 8:56:36 am

Back when he was in the United States Senate, Vice President Joe Biden came up with the brilliant idea of being able to charge people with the crime of "honest services fraud," something that would permit prosecutors to charge public officials with depriving the public of its intangible right to receive the honest services of public servants.

Billed as an anti-corruption measure, the idea that the violation of an "intangible right" can be considered a crime that can send people to jail should send shivers down the spine of every freedom loving person in the land. Imagine, if you will, the concept applied to the nation's highway system—which would then allow the state troopers to pull you over for "going too fast" (rather than exceeding a specific speed limit). The result would not only be chaotic, it would be a direct threat to liberty.

Even existing legal codes are unclear on the subject, providing very little definition or advance notice to anyone accused of this particular crime of what actions, precisely, constitute honest service fraud. Yet the crime itself gives federal prosecutors with bottomless resources at their disposal the open-ended authority to charge almost anyone with fraud or corruption for public or even private activities, as media mogul Conrad Black can now attest.

Black, the former chief executive of Hollinger International Inc., was several years ago convicted of honest services fraud, as the Washington Post reminded in a Friday editorial, as the result of business dealings which involved payments to him as part of a non-compete clause.

Attorneys representing Black argued Tuesday before the United States Supreme Court that the government charge against him was not only in error—because the deals were highly profitable for Hollinger and the government failed to prove the payments were otherwise illegal or defrauded the company—but that the charge itself should not exist.

Seemingly trivial, it is actually a very important case because the charge is so devoid of meaning that it could be applied to anyone in almost any situation and, as we have seen in several recent public corruption cases that have gone awry as far as the Department of Justice is concerned, that person could then be squeezed and squeezed and squeezed until they reach the point where they are willing to say almost anything to get out from under the pressure. The charge is so all encompassing that the only restraint against its abuse are limits prosecuting authorities place upon themselves, something that is in direct contradiction with the idea that America is a nation of laws, not of men.

This may also be, however, its undoing. The Supreme Court is likely to find, and should by the way, that the idea of honest services fraud violates a cardinal democratic principle: that an individual must intend to violate the law—which is not the same as simply knowing the law exists—but must knowingly act in a way that leads to the law being violated. If you cannot know you have broken a law until after you have broken it and been indicted as a result, then the legal system has been turned on its head, unless you see things from the perspective of King George III.


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