A Supreme Court justice’s legacy in jeopardy

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Justice John Paul Stevens is dead at the age of 99, after a lifetime of applying the law to society’s most pernicious social problems, from gun violence to the influence of money on politics. While the justice’s views on many of society’s challenges evolved over time, there is one topic about which his views were consistent throughout his long career as a jurist: the role of the law in protecting ordinary citizens from the corruption of public officials. Ironically, it is that legacy that is perhaps in greatest jeopardy today.

In 1987, the Supreme Court held that a self-dealing political operator named McNally couldn’t be guilty of a scheme to defraud the citizens of Kentucky of their intangible right to honest services because the federal mail and wire fraud statutes criminalized frauds on money or property, but not on the body politic.

Justice Stevens dissented vigorously. He argued that Congress perceived the insidious nature of public corruption and clearly intended to include corrupt conduct in the sweep of the mail and wire fraud statutes. He posited that public officials have a fiduciary obligation to tender honest services to the public they serve, citing a case out of Chicago whereby a corrupt judge committed honest services fraud by accepting a bribe from a lawyer on a case and not disclosing that bribe to the opposing lawyer. He pointed out the creativity of sophisticated fraudsters and the limited tools to taken them on, arguing that mail and wire fraud are “the sole instrument of justice that could be wielded against ever innovative practitioners of deceit.”

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Finally, and importantly, Justice Stevens observed that a Supreme Court that declines to apply the anti-corruption interest but vigorously upholds the enforcement of federal criminal law in other areas appears to favor the ruling class over others. Such a ruling, the justice stated pointedly, raises “lingering questions about why a court that has not been particularly receptive to the rights of criminal defendants in recent years has acted so dramatically to protect the elite class of powerful individuals who will benefit from this decision.”

What has happened since 1987?

Congress responded to Justice Stevens’ McNally dissent in record time, passing a separate law to address honest services fraud in 1989. But in 2010, the Supreme Court held in Skilling v. United States that honest services fraud was only a crime if it included bribery or kickbacks. Three years ago in McDonnell v. United States, the Court found that the Governor McDonnell’s official action did not meet a threshold – unspecified by Congress – of conduct to trigger the application of federal criminal law.

Today, the Court has agreed to hear the appeal of the defendants in Bridgegate, the case in which two cronies of Governor Chris Christie arranged to impose gridlock on the George Washington Bridge as an act of political revenge on the mayor of Fort Lee, New Jersey, intimating that it regards governance in bad faith as dirty politics, but not a crime.

Justice Stevens’ views on public corruption were informed by his life experience. Born and raised in Chicago, he served in 1969 as counsel to the Greenberg Commission, which was investigating charges that two members of the Illinois Supreme Court had been bribed by a bank that was involved in a case before the justices. He saw justice for sale, and the vulnerability of the rule of law.

In an interview with the New York Times Magazine in 2010, Justice Stevens stated that “one of the overriding principles in running the country is the government ought to be neutral. It has a very strong obligation to be impartial and not to use the power to advance political agendas or personal agendas. That’s just one of the most basic principles that cuts through all sorts of law.”

In 2019, these are words to the wise.

Juliet Sorensen is the Executive Director of Injustice Watch and a clinical professor at Northwestern Pritzker School of Law. She is the co-author of Public Corruption and the Law: Cases and Materials.