Legal Commentary

On Monday, the Court denied cert in Sorich v. United States, 08-410. Justice Scalia was correct to dissent: The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway over the political process in harmful and even corrupt ways, all in the name of fighting corruption.

Robert Sorich was Daley's head of the Chicago Office of Intergovernmental Affairs. His heinous crime was to use this office to hand out governmental jobs to the political supporters of the mayor. The Seventh Circuit had held that Sorich and others were under a fiduciary obligation not to engage in patronage politics, because the City was under a consent decree from the Shakman litigation not to take political affiliation into account when making municipal hiring decisions. Shakman was section 1983 case in which Michael Shakman claimed that discrimination based on political affiliation deprived him and others of an equal right to participate in the political process. Sorich tried to evade this decree by picking candidates based on political loyalty and then subjecting them to sham interviews and other politically neutral job criteria. For this, he was convicted of depriving the citizens of Chicago of his honest services -- a conviction that the Seventh Circuit upheld in U.S. v. Sorich, 523 F.3d 702 (7th Cir. 2008).

That patronage politics are now a criminal offense in Chicago is surely eye-opening. That U.S. Attorneys can determine when patronage politics are criminal, based merely on their own sense of ethics laced with miscellaneous rules on disclosure and conflict of interest, is simply wacky. One can only hope that the discretion of federal prosecutors will be reigned in by the twin requirements that the indictment specify some sort of secrecy (to satisfy section 1346's requirement that there be a deprivation of "honest services") and breach of fiduciary duty (to satisfy section 1346's requirement of a deprivation of some "intangible right" to such honest services). But there are a plethora of civil rules out there on disclosure, conflicts of interest, etc. (New York City has a full-time administrative agency devoted to ferreting out such conflicts). Have all of these state and local rules now been transformed into political weapons for use by U.S. Attorneys -- political appointees themselves and often aspiring politicians -- against their political rivals?

I guess that the Court is just too darn busy to answer the question.