Antonin Scalia went far beyond the progressive Ginsburg in wanting to strip the so-called "honest services" statute of its bite. He did it simply and clearly:
"It fails to define the conduct it prohibits," Scalia wrote in a concurring opinion.
That’s ground zero in constitutional law. The law must say what is illegal. The core of due process of law. Otherwise, anyone can be accused of anything and, if the prosecution is persuasive, anyone can be convicted, particularly by a jury prone to believe all officials are corrupt.
[N]othing beats Scalia’s analysis. "The statute," he wrote, "does not answer the question, `What is the criterion of guilt?’"
It’s got to be something other than election to public office.
I left the following supportive comments:
zemack June 28, 2010 at 4:52PM
Great article. It’s so refreshing to see a concrete issue analyzed in relation to fundamental ideas, an all too rare occurrence. In this case, both Mr. Braun and the US Supreme Court stood up for objective law.
When I heard prosecutors complain that this Court decision stripped them of their “flexibility”, I knew instinctively that the right decision was made, even before I familiarized myself with it. Lack of “flexibility” in prosecurorial matters by government officials is precisely what the American doctrine of “a government of laws and not of men” is intended to enshrine. Non-objective law means arbitrary government power, a basic tenet of a dictatorship.
Just as I cheered the court’s recent decision that removed restrictions on corporate and union campaign spending because it upheld the First Amendment, so I cheer this one. Both uphold critical fundamental principles vital to a free society.
Bob Braun has done a good job here presenting the essential aspects of the issue clearly and concisely.
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