Depending on how the court rules, the ability of U.S. Attorneys such as Carmen Ortiz to send public and quasi-public figures to jail could be seriously restricted.

Credit: Joe Ravi

Politics As Usual, Or Federal Crime? Is The US Attorney’s Reign Of Terror About To End?

May 10, 2016

The future of federal prosecution of local politicians, union leaders and civil servants for “corruption” is effectively under review by the U.S. Supreme Court. Depending on how the court rules, the ability of U.S. Attorneys such as Carmen Ortiz to send public and quasi-public figures to jail could be seriously restricted. This, likewise, could force changes in how the media, including The Boston Globe, reports on cases purportedly involving corruption, such as the apparently ongoing Ortiz probe into alleged union wrongdoing into which Boston Mayor Marty Walsh may or may not figure. The hope—at least for civil libertarians—is that clear and reasonable standards will be established that differentiate between truly corrupt and illegal behavior and run-of-the-mill political conduct—even if tawdry or distasteful.

It was a series of questions asked by the Bay State’s own favorite son, Justice Stephen Breyer, in a high court appeal brought by former Virginia Gov. Robert McDonnell, that gave the clearest hint that a strong bipartisan majority of the justices are finally prepared to severely narrow, if not throw out entirely, a collection of federal “antifraud” and “extortion” statutes. These statutes have long been used by federal prosecutors to brand political figures of many stripes as felons merely for engaging in what many deem “politics as usual.” 

A decision tossing the corruption conviction of McDonnell, for facilitating meetings between state officials and a generous donor, appears quite likely from the April 27th oral argument. Led by an unusually animated Breyer, the justices mercilessly peppered Deputy Solicitor General Michael Dreeben with questions essentially boiling down to this central issue: Does the Constitution allow federal prosecutors to use vague federal “anticorruption” statutes to punish conduct that has long been considered part of the local political culture?

The recharacterization of local politics as hotbeds of federal fraud is much back in the local news these days, what with the Globe reporting—based upon apparent federal leaks—that the Massachusetts U.S. Attorney’s office is employing an investigative grand jury to look into the possibly criminal intersection of labor unions and local politics. Central to the imbroglio is whether Walsh, a former labor organizer, or some of his associates might have crossed some hard-to-specify line that separates legitimate labor organizing tactics from extortionate criminal threats.

Walsh has been notably tight-lipped about leaked reports that his voice was picked up on a 2012 court-authorized wiretap, before he was elected mayor, informing a real estate developer that he should use unionized labor in a Somerville project or else risk unspecified difficulties in obtaining governmental permits on an unrelated Boston project. This leak comes on the heels of a seemingly unrelated indictment pending in federal court against five Teamsters Union members who allegedly exerted illegal pressure and harassment on a nonunion TV crew, and so the stakes seem quite high for the mayor and his people. Some legal and media opinion suggests, however, that we should be cautious in assuming that playing labor or political hardball is equivalent to exerting criminal pressure.

The tone of the Supreme Court justices’ questions in the McDonnell oral argument echo this sentiment. McDonnell, while governor, accepted substantial personal gifts from a businessman who was trying to get the state university to run FDA-required tests on his dietary supplement. McDonnell went so far as to ask that the businessman be given an audience with state university decision makers. Under current interpretations of bribery law, the government had to prove that McDonnell and the businessman were engaged in a “quid pro quo” arrangement: McDonnell accepted a gift (the “quid”) and, in return, performed an official action on behalf of the businessman (the “quo”).

Breyer, after making the obligatory disclaimer that he is not “in favor of dishonest behavior” (“I’m against it”), suggested his doubt that the federal antibribery statute is “the weapon to cure” dishonesty or greed in political life. First, he suggested, there is “a general vagueness problem” in pursuing these kinds of cases using statutes so diffuse they give no guidance as to what practices are prohibited, or where a line is drawn. Second, Breyer said that allowing federal prosecutors to use these statutes in attacking state political practices poses a “separation of powers problem”: “The Department of Justice in the Executive Branch becomes the ultimate arbiter of how public officials are behaving in the United States, state, local, and national.” It is “dangerous,” Breyer suggested while wearing the mantle of a civil libertarian, “to give that kind of power to a [federal] criminal prosecutor.” Chief Justice John Roberts chimed in to note that some of the justices in prior cases had been prepared to toss out the statute entirely, and he suggested that the time for such drastic action might now be at hand.

Here in Massachusetts, we have witnessed a series of high-profile “political corruption” prosecutions that have raised issues similar to those that finally have garnered front-and-center attention at the Supreme Court. Onlookers, including this writer, have aimed criticism at recent occupants of the U.S. Attorney’s office for going after bureaucrats in the state Probation Office for hiring practices that favored candidates who had influential connections, or “sponsors,” in the legislature. (An appeal pending in that case will certainly be influenced by what the Supreme Court does in the McDonnell case.) And the federal tyranny is not aimed at only one political party. Indeed, recently, Republican Gov. Charlie Baker had to go out of his way to deny his involvement in, or even knowledge of, a fund-raising plan that would exchange political contributions for access to the governor’s office. Doubtless the governor had one eye trained upon Ortiz.

In the event the Supreme Court tosses these federal “anticorruption” statutes as applied to state politicians, it will be up to Congress to attempt to replace them with clearer and more realistic guidelines that give more deference to state-by-state decisions as to what constitutes acceptable political culture. The battle would then be returned to the Massachusetts Legislature, and to our state Supreme Judicial Court, to determine what kind of state government we want. Perhaps then the United States Attorney’s long tyranny over the Commonwealth’s political culture will meet its long-overdue demise, replaced by democratic decision-making. One hopes, of course, that such decision-making will result in a change of culture that, thus far, even the U.S. Attorney’s reign-of-terror has proven unable to accomplish. Democracy might well work better than prosecutorial overreach.

Harvey Silverglate, a Boston criminal defense and civil liberties lawyer, is the author of "Three Felonies a Day: How the Feds Target the Innocent" [Encounter Books, 2nd ed. 2011]. He is at work on a sequel entitled "Conviction Machine."


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