Legal Commentary

That's what today's oral argument in Weyhrauch v United States, No. 08-1196 sounded like to me and others as well. If that's the accurate read of the justices' views, then the news is Christmas come early for me. I've been inveighing against the corruption of allowing federal prosecutors to define corruption inveighing against the corruption of allowing federal prosecutors to define corruption since the cert. denial in Sorich. As I argued here, here, and here (in an article rather than a blog post), construing the Mail Fraud statute to cover any action deemed by a U.S. Attorney gives federal executives far too much power to design the ground rules for politics.

Commentators and the Justices usually condemn the Mail Fraud's ban on deprivations of the "intangible right to honest services" for its failure to give adequate notice to defendants. But vagueness is the least of the statute's problems: The greater evil is that construing the statute to cover undisclosed conflicts of interest corrupts our political culture, by encouraging prosecutors to advance their own political careers through the sniffing out of their political enemies' inevitable conflicts of interest and face-saving hypocrisies. Conflicts of interest are endemic to any complex system in which people are expected to play multiple roles, either simultaneously or seriatim. Presidents appoint big fundraisers to be ambassadors to the Bahamas, because Presidents are both Diplomats in Chief and chiefs of their political party. Judges hire the children of friends as law clerks, because judges' social lives bleed into their professional lives. Ex-Presidents advance the political ambitions of their spouses, paying marital debts with political chits. Are these conflicts saved from criminality only because they are disclosed? But then how much disclosure is enough? Why would anyone leave the definition of these rules on disclosure and conflicts of interest to federal prosecutors, officials who, from Dewey through Giuliani to Christie, have been likely candidates for political office themselves and, therefore, have every incentive to nail rivals' hides to the wall in their effort to gain office as heroic virtue-crats?

Of course, one could attempt to narrowly construe the statute. But Albert Alshuler's amicus brief nicely (albeit inadvertently) shows how such narrowing is practically impossible without improperly delegating the definition of federal crimes to the states . It is high time for the Court to send this mess back to Congress for a complete overhaul. I am crossing my fingers that the Court agrees.