6 Degrees of Roger Stone

Speaking of off-the-wall GOP consultant Roger Stone and Former New York State Senate Minority Leader Joe Bruno, the U.S. Supreme Court is currently deliberating on the theft of honest services law. This statute is the same one under which Gov. Christie, then US Attorney, was able to convict former Bergen County Democratic Organization Chairman Joe Ferriero. Coincidentally, it has been rumored that Ferriero is close to New Jersey State Senator Kevin O’Toole (Norcross-R).

As a former Governor, I would find this this sort of ally-of-my-ally-is-under-indictment dichotomy would be fascinating…if Garden Staters had not already seen it all.

Both Stone’s ally Bruno and Stone’s ally Sen. O’Toole’s ally Joe Ferriero are awaiting sentencing pending the Supreme Court Opinion of the theft of honest services law.

As for the honest services law… It’s a load of carp.

The statute criminalizing theft of honest services is a vague and elastic one that allows the feds to prosecute almost anybody for almost anything. This law is, for all intents and purposes, built to allow an individual who actually does engage in illegal activity to shift the onus of the crime onto a higher-valued target while the actual criminal turns state’s evidence. It’s the federal prosecutor two-step.

Last February, Justice Antonin Scalia launched one of the verbal broadsides for which he is so well known — this time, a blast at the federal “honest services” law, a law that dates from 1988. Though that law “consists of only 28 words,” Scalia noted, it has been “invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries…Without some coherent limiting principle to define what ‘the intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.” SCOTUS Blog

The problem at the heart of the honest services debate is the disconnect between federal law and common Law. Common law, built upon centuries of legal tradition, requires that for a crime to have been committed a criminal must have had intent to commit the crime and knowledge that his or her actions were illegal. State attorneys general are constrained by common law, but the feds are not.

Not being bound by intent has allowed the feds to throw accusations around with the high likelihood of winning convictions without proving actual illegality.

For examples of federal laws used in purely political prosecutions, witness former Alabama Gov. Don Siegelman’s conviction and highly punitive sentencing at the hands of Karl Rove or Scotter Libby’s conviction and sentencing for obstructing the investigation of a crime that actually tuned out to not be a crime.

Highly flexible federal laws are a clear and present danger to life and liberty.
For more information we recommend the expertly written Three Felonies a Day: How the Feds Target the Innocent” by Harvey A. Silverglate.

Share