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Will “honest services” prosecutions be put on hold?

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* The National Law Journal claims that the Department of Justice may rein in “honest services” prosecutions while the Supreme Court considers an appeal…

A key weapon in the arsenal of U.S. Attorney Patrick Fitzgerald and his prosecutors in Chicago has been a section of the federal anti-fraud statute that makes it a crime to deprive citizens or corporate shareholders of “honest services.” It’s been used to convict dozens of state and local government officials, as well as newspaper magnate Conrad Black and former Gov. George Ryan of Illinois. Fitzgerald cited the honest services in the April indictment of another ex-Illinois governor, Rod Blagojevich.

But the U.S. Supreme Court’s May decision to review Black’s 2007 conviction may put the brakes on the honest services provision. The U.S. Department of Justice is likely to rein in use of the provision, 18 U.S.C. 1346, until the high court rules on Black’s appeal next term, former federal prosecutors say. “Anytime that there’s a high-profile review of a conviction, the department tends to just stop in its tracks, and this is a very high-profile review,” said Matt Orwig, a partner and criminal defense attorney in the Dallas office of Sonnenschein Nath & Rosenthal and former U.S. attorney for the Eastern District of Texas. “There’s going to have to be some very careful analysis of how they’ve approached these cases in the past.” […]

Orwig, who didn’t recall using the charge when he was a U.S. attorney, said he thinks the section has been “over-used.” It was the lead charge lodged by U.S. attorney offices against 79 suspects in fiscal year 2007, up from 63 in 2005 and 28 in 2000. (The Justice Department doesn’t consistently track it as a secondary charge.)

Is it getting out of hand? I’ve been hearing lots of comments both for and against this type of prosecution. Prosecutors, like most bureaucrats, will usually tend to take their mandates to the extreme. That’s why we don’t allow bureaucrats to rule us unfettered, despite what some editorial boards may wish for.

* Meanwhile, this lawsuit hasn’t received much coverage here yet…

Four Illinois riverboat casinos are suing former Illinois Gov. Rod Blagojevich as they continue to fight a state law that requires them to share their profits with the state’s ailing horse racing tracks.

But it’s quite the suit…

In a federal RICO complaint, four casinos say former Gov. Rod Blagojevich used the governor’s office to enrich himself, his campaign committee and other conspirators. The casinos claim Blagojevich schemed with horse track owner John Johnston to secure enactment of the 2006 and 2008 Racing Act bills, which forced casinos to pay millions of dollars to five horse tracks, including Balmoral Park and Maywood Park, both owned or control by Johnston.

To conceal their actions, Johnston arranged for the money to be paid through several entities under his control, according to the complaint. As a result, the plaintiff casinos say they had to pay $89.2 million for redistribution to horse tracks and their owners, fattening the tracks’ profits at the plaintiffs’ expense.

More…

The law was enacted in 2006 and mandated that the casino funds be transferred to the horse tracks for two years. The complaint says that after the 2006 passage, “Blagojevich and Johnston and possibly others in the horse racing industry, agreed that Johnston or his affiliates would pay Blagojevich or Friends of Blagojevich money in exchange for ensuring the enactment” of the law. The complaint says that a month after Mr. Blagojevich signed the 2006 law, Mr. Johnston contributed $125,000 to Friends of Blagojevich though various affiliates. “To conceal their unlawful scheme, Johnston arranged for this money to paid through several entities under his control,” the suit alleges.

Defense…

Mr. Reinberg said Mr. Johnston’s campaign contributions to Mr. Blagojevich were routine, and timed to an annual June fundraiser for the Governor, and not payment for enactment of the initial 2006 law, as the suit alleges.

Mr. Johnston “never made a contribution to Governor Blagojevich or any other politician with a quid pro quo or any expectation that the Governor would act on his behalf,” Mr. Reinberg said.

* And convicted former Gov. Dan Walker, who battled the Chicago Machine throughout his one term in office, blames the same Machine for our current woes…

The record is clear that it is the Chicago political machine that has brought Illinois, the Land of Lincoln, to its present intolerable state of corruption.

* Related…

* Wanted: Untainted districts

* Is ex-radical Quinn maturing or just compromising?

* Illinois legislature misses true reform but opens government

* Campaign reform effects limited: Modest difference seen, applied to 2008 race

* Keep pressure on lawmakers for recall vote

* For whom does spokesman speak?
* U. of I., still hiding

* Deny admission to politics

* Boland joins team investigating U of Illinois admission policy

* Supreme Court ruling on judicial recusals resounds in Illinois

* Illinois needs to change how judicial races are financed

* Spending on judicial races sparks protest, but no limits in Illinois

* Judge lets fourth lawyer join Blagojevich’s legal team

* Blago Hits Second City

* Blago drops in on 2nd City spoof, gets in his own shots

* With Blagojevich, show goes on

* Blagojevich joins cast of “Rod Blagojevich Superstar”

posted by Rich Miller
Monday, Jun 15, 09 @ 9:43 am

Comments

Dan Walker is saying some things that many people would rather not hear. One party government in Chicago has lead to massive corruption. It has also pushed out those who would care about honest government and lower taxes. Walker pulls no punches with the Machine’s ties to the Chicago Mob. Walker was referring to this:

http://nalert.blogspot.com/20
08/03/chicago-democrats-and-c
hicago-mob.html

and this

http://www.newgeography
.com/content/00835-the-real-m
ayor-chicago

Comment by Steve Monday, Jun 15, 09 @ 10:03 am
An interesting aspect of the Casino/Tracks suit is the fact that the Supremes declined without comment to hear their appeal on lower rulings upholding the law.

As things stand now, the state can redistribute the wealth from one licensed gambling activity to another.

Call it the Lobbyist Full-Employment Act.

Comment by wordslinger Monday, Jun 15, 09 @ 10:21 am
Maybe honest services is too broad a term. One man’s honest services is another man’s deviant behavior. Of course the looseness of the term can swing both ways. I am sure that team blago will argue that all these allegations involved a higher purpose of “honest services” he was trying to provide as Governor… healthcare et al.
I am for the provision because i trust 12 members of society to see through the BS of either the defense of prosecution to determine whether or not the people were deprived.

Comment by anon the phenom Monday, Jun 15, 09 @ 10:23 am
So the Casino’s lose all their litigation, and in a move of desperation deside to toos in on the Blago scandal years later. If this is true why not raise it in a challaneg to the validity of the law itself?

Smells like a fraudulent claim by the desperate.

Comment by Ghost Monday, Jun 15, 09 @ 10:28 am
I wonder if the statute should be applied in an identical fashion for both government officials(George Ryan) and those in private industry (Conrad Black). I would hope that USA’s are given more latitude with regards to public officials.

Of course, the article contains quotes from prosecutors turned criminal defense attorneys arguing in favor of a more narrow interpretation of the law.

Comment by The Doc Monday, Jun 15, 09 @ 10:34 am
Take caution about reading too much into the Court’s decision to hear Conrad Black’s appeal.

Recall that the Court recently refused to hear Robert Sorich’s appeal. The Opinion by the Seventh Circuit in Sorich was a ringing endorsement of the application of the “honest services” principle to public officials.

One issue in the Conrad Black case is whether the concept is so widely applicable in the context of a private corporation. The Justices obviously feel a bit more troubled by that.

Comment by Bubs Monday, Jun 15, 09 @ 11:17 am
The linked article indicates that the US Attorney’s Office in Chicago had a 96% conviction rate last year.

The legal system is supposed to be an adversary system. It goes without saying that a true adversary system would not produce a 96% victory rate for one side.

Of course if any elected official attempted to speak out against the current state of affairs, he (or she) would be derided by the sanctimonious editorial boards — intent on poisoning jury pools and, of course, ending “corruption.”

They’re going, instead, to eliminate any hope that elective, democratic politics can effectively govern this state.

Comment by Anon Monday, Jun 15, 09 @ 11:24 am
–One issue in the Conrad Black case is whether the concept is so widely applicable in the context of a private corporation. The Justices obviously feel a bit more troubled by that.–

Hollinger was a publicly-traded company. Lord Black of Crossharbour sold company assets then phonied up non-compete agreements that benefitted him privately, instead of the company.

I don’t pretend to know what the Supremes are interested in, but there’s no question he robbed the place blind (didn’t pay taxes, either).

Comment by wordslinger Monday, Jun 15, 09 @ 11:32 am
Wordslinger is right.

Conrad Black also destroyed the financial viability of the Sun Times, a paper which will eventually fail, not because of changes in the industry or even the recession, but because he robbed it of hundreds of millions.

A lot of hard working people will hit the streets as a result and a great city will be denied the competition generated by a two-newspaper town. That result is perhaps Black’s greatest crime.

Comment by Dem observer Monday, Jun 15, 09 @ 1:37 pm