According to Harvey Silverglate, when US Attorneys like Carmen Ortiz are investigating state pols, Ortiz is really exceeding her authorization. Silverglate calls her regime Reign of Terror – inaccurately – and points out that the McDonnell case in front of the Supreme Court is liable to change the way all US Attorneys will be allowed to deal with state political corruption.
I suspect Silverglate is right about the fallout from the McDonnell case. And it’s a fairly big deal. It’s a consequential thing that’s liable to happen unbeknownst to many, with little following in the national or state press – with the impact being felt mostly in the states.
The effect to Massachusetts will be direct. We have the dubious distinction of having three House speakers convicted of felonies in federal court, and the fourth an unindicted co-conspirator. If it makes us feel better, we are not completely alone: Sheldon Silver, long time assembly speaker in New York state, was recently prosecuted by the office of Preet Bharara and found with millions of dollars in kickbacks and bribes.
Depending on the US Supreme Court decision in the McDonnell case, this oversight regime by the US Attorneys could come to an end.
If that happens, we should expect more things to go under cover and in the dark. What’ll be the incentive for the press to report shady things and corruption of state officials, if no one is left with legal standing to follow up the leads?
The State Attorney General, at least in Massachusetts, simply does not get involved in these kinds of investigations. State law does not give Maura Healey the tools to do so, and political ambition makes it unwise even if better legal tools were available to pursue corruption of state pols.
Observers of the suit say it’s quite likely that the US Supreme Court will give the corrupt pols a break. Writes Slate: “…It seems obvious to the justices that public corruption and ethics rules are adorable, antiquated, and unenforceable because everybody does it.”
…It’s a nice refrain, inspired by an old Cole Porter song – now played in defense of political corruption:
“And that’s why birds do it, bees do it
Even educated fleas do it…”
. . . on the state level. Is it really true that the pols who were prosecuted by the feds broke no state laws? Or are those laws toothless?
I wonder if this will have any bearing on Governor Don Siegelman’s case.
Flaherty evaded his taxes. Finneran committed perjury. DiMasi (and presumably DeLeo) committed fraud. That is to say, they all committed clear violations of existing laws. None of them did so at the behest of US Attorneys. They did themselves in. I don’t now that any ruling on the McDonnell case would make any impact, if retroactively applied to any of our ex-officio convicts emeritus.
McDonnell admits that what he did was improper but disputes the illegality of it. That’s what’s at stake.
I don’t know that this case is about ‘redefining political corruption’ as it is about presuming that US Attorneys can never, themselves, be corrupt and that all the opportunities for corruption lie solely within the politicians grasp. If our erstwhile ranter-in-chief EBIII is to be believed, US Atty’s often abuse their precis. The very notion of a ‘reign of terror’ brought about by a US Atty sorta maps out the terrain of the case. If what McDonnell did was not illegal then what the feds did is… and vice versa.
This case is not about “presuming US attorneys can never, themselves, be corrupt”. Where, which US attorney is quoted in any relation to the McDonnell case as being corrupt?
The effect on Mass will not be to undo previous convictions – but instead to chill the oversight on our state politicians. The case in front of the Supreme Court purports to shrink the ‘quo’ in the ‘quid pro quo’, and narrow the definition of “official act” – to the point where Gov. McDonnell & wife can safely get more than $175,000 in luxury goods, gifts, loans from a guy who benefited from his influence as a standing Governor.
She’s supposed to be a legal reporter, but all she ever does is editorialize.
She just says that the gov was convicted of “public corruption.” What that really means is that he was convicted of “honest services fraud” under the federal mail and wire fraud statute. You can be convicted if you use the mails or wires in support of a scheme to deprive another of your honest services. What are “honest services”? Good question!
In a few circuits, the courts have held that the bad thing you did must actually be illegal. In a few others, which are much preferred by the Justice Dept, the thing you did must be, in the eyes of the US Atty, unethical, even if it is perfectly legal. Well, what’s unethical? They’ll let you know, in the indictment.
The US Atty has a set of criminal statutes that let them prosecute anyone at anytime for virtually anything. Remember Martha Stewart, who did jail time for concealing the insider trading that she didn’t do? Or the cyber-bully from Missouri who was indicted by the US Atty in California for “using computers in violation of licensing” (that is, criminalizing a private breach of contract). This is another of those tools.
read and understand legal stuff, but the issue is not pragmatic question of who and how corruption should be investigated. It’s a question of what constitutes politics as usual and what constitutes corruption. The case law on this is tortured, and there is no clear line or test for drawing such a line.
On the strange bedfellows side of things, Stephen Breyer agreed with Clarence Thomas’s dissent, and John Roberts signed on to Sonia Sotomayor’s opinion.
What is the role of the Inspector General in all this? And perhaps the Auditor?
Does the inspector general have authority to refer for prosecution as well as void dishonest transactions?
And if such a referral from the auditor or IG is made to the Attorney General, is she free to just watch it wither and die on the floor?
Leaving it to the state has too much potential for conflict.
As a side note, Alabama has to take the cake right now. Their Governor, House Speaker, and Chief Justice (yes, that would be the respective heads of ALL THREE branches of government) are currently in varying degrees of legal trouble.
I really want the GOP House to decide who should be investigated across the country. I don’t know if federalizing it eliminates corruption as much as enlargens it.
On your side note, the recent article in the Economist on Alabama was quite the read. At least in Massachusetts we turf out arrested politicians.
I meant FBI/Justice as opposed to state law enforcement.
On the one hand, our own experience in MA shows that state officials like the AG are entirely uninterested in political corruption, because interest in same might have negative impacts on aspirations to higher office.
On the other hand, state law enforcement is not a loose cannon on a power trip, as are the feds, and certainly don’t do things like overt collaboration with organized crime, executing witnesses under interrogation and then classifying the interrogation records so as to conceal what happened, etc.
Particularly in Massachusetts, there is zero reason to trust federal law enforcement to be anything other than corrupt and unconstrained.
I would be mildly more comfortable if statutes used by the feds actually defined what the crime is, rather than making it depends on the whims of the Justice Dept.