The Honest Services Of Public Officials

Author : Thomas Fredrick Rybarczyk
Publisher :
ISBN 13 :
Total Pages : 0 pages
Book Rating : 4.:/5 (137 download)

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Download or read book Preserving a More Perfect Union written by Thomas Fredrick Rybarczyk and published by . This book was released on 2014 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The federal criminal law that serves as a principal protection against local and state political corruption faces extermination at the hands of the Supreme Court. For the past twenty years, federal prosecutors utilized one statute - the mail and wire fraud's prohibition against theft of a citizen's right to honest services - to stymie the most sophisticated state and local corruption schemes. The reason for its success: the statute's purposely vague language. The vague language allowed prosecutors to bend and shape the law to fit the contours of fraudulent schemes that did not match the precise elemental definitions of bribery or extortion. However, its vague language is also its biggest vice. The vagueness invites the potential prosecutorial overuse and abuse, which partly explains why the Court granted certiorari on three appeals in one term. This vague language has also caused confusion within and among the circuit courts. Their struggle to articulate an approach that balanced the law's prime policy goal against its purposely vague elements created a situation where federal criminal law applies differently depending upon which circuit's jurisdiction a defendant committed his or her act. This article advocates for Congress to enact an honest services fraud statute that cabins the law's reach while preserving its ability to criminalize acts undermining the republic's faith in its state and local representatives. This “public-trust preserving private gain” standard is a two-prong test I introduce that elevates substance over form. Borrowing heavily from tests established by the Sixth and Seventh Circuits, the standard's first prong requires proof that a defendant qualifies as a de facto or de jure public official who owes citizens a right to his or her honest services. The second prong requires prosecutors to show the defendant misused his or her position in order to obtain an economic private gain for himself, herself, or a third party. Then, the article analyzes the likely outcomes using the “public-trust preserving private gain” standard and the popular “state law limiting” approach adopted by two circuits in three state and local corruption scenarios. Comparing these two approaches against each other reveals that the “public-trust preserving private gain” standard ensures that public officials will not face charges for minor lapses in judgment without compromising the law's prime policy goal of protecting the public against its corrupt politicians and governors.