‘You can indict a ham sandwich,” went the old saying.
Good prosecutors couldn’t actually do that, but they usually could persuade grand juries to do all sorts of things. Federal prosecutors were the best at this because federal law was far more pro-prosecution than state law.
Federal law eventually became so pro-prosecution, however, that the old saying needed an upgrade. The feds not only could indict a ham sandwich, they could actually convict one.
The reason for this was the federal “honest services fraud” statute. Prosecutors used the law to go after corrupt politicians and business leaders. It was an extremely effective tool because it made their jobs so much easier.
Prosecutors, for instance, didn’t have to prove any quid pro quo to convict their targets. If it walked like a duck and quacked like a duck, then it was a duck under the law.
All that changed last summer when the U.S. Supreme Court stepped in. The Supremes limited the use of honest services fraud to just bribes and kickbacks, and the justices insisted that prosecutors prove clear quid pro quo behavior.
No longer would “you give me this and somewhere along the line I do that” be automatically a prosecutable offense. The government would now have to prove that the “this” and the “that” were inextricably interrelated. In other words, it actually had to be a duck.
And that wasn’t all. Federal prosecutors could no longer fold state law violations into their honest services cases. They also couldn’t contend that defendants who failed to disclose a conflict of interest were in violation of the honest services statute.
Narrowing the honest services fraud law was, for prosecutors, like losing your expensive set of Snap-On socket wrenches and having to use a pair of Dollar Store pliers instead. You might still be able to get that bolt out, but it wouldn’t be nearly as easy.
Former Gov. Rod Blagojevich is a good case in point. He originally was indicted under the honest services law, but prosecutors had to re-indict him without it. Blagojevich was convicted on only one count: lying to an FBI agent.
I’ve told you all of this so we can talk about George Ryan. The former governor is in federal prison after being convicted under the old version of honest services. Unlike with Blagojevich, prosecutors never had to prove a Ryan quid pro quo existed. They also could use state laws against Ryan as well as his failure to disclose his financial conflicts of interest. The jury found him guilty on every single count.
This week, Ryan’s lawyers used the Supreme Court’s decision to argue that he should be set free. We’ve been bombarded with emotional pleas from both sides.
Ryan shouldn’t be released from prison just because some feel bad for an old, sick man, and others, including myself, feel sorry for his terminally ill wife. But he shouldn’t be kept in prison because of our emotions, either.
Like many of you, I’m still very angry about what he did. I don’t think I’ll ever get over that no matter how long I live.
The deciding factor here ought to be the law, not passion.
And it’s obvious to anyone but the most emotionally blinded that Ryan’s trial would be radically different if it were held today.
The prosecution claimed over and over back then that they not only didn’t have to prove a quid pro quo involving Ryan, but that they didn’t have to show any evidence of one to convict him, either.
They simply couldn’t get away with that now.
I just hope we can let the judicial system work this out without getting too worked up ourselves.