How To Stop the Next Bruno
When federal District Judge Gary Sharpe sentenced disgraced former state Senate Majority Leader Joseph Bruno to two years in prison, he took the unusual step of suspending the sentence until the U.S. Supreme Court decides whether the law that Bruno violated is constitutional. If Bruno goes free, it will be a sad day for New York. But if the court strikes down the nebulous federal “honest services” law, it will be a good thing for the nation.
Bruno was found guilty under a notorious provision of the federal mail fraud law that criminalizes “any scheme or artifice to defraud” someone of the “intangible right to honest services.” Congress passed the “honest services” provision in a fit of pique after the Supreme Court decided a case called McNally vs. United States in 1987. The McNally decision clarified the vague mail and wire fraud laws by limiting their reach to frauds that deprive victims of money or property.
Worried that some wrongful conduct somewhere might go unpunished as a result of the court’s decision, Congress responded by enacting language so vague and overbroad that, as Justice Antonin Scalia acerbically observed, it arguably makes a federal crime out of “a salaried employee phoning in sick to go to a ball game.”
How ironic, then, that Congress’ sloppy legislative effort could spell freedom for an old school Albany hustler like Bruno. Justices’ questions during oral arguments in Black, Weyhrauch and Skilling -- the three “honest services” cases that the Supreme Court heard this year -- evinced broad agreement that the law should either be strictly cabined or struck down entirely. In either case, Bruno, whose conviction is based primarily on undisclosed conflicts of interest, is likely to walk.
If Bruno does retire unscathed, an increasingly careless and impatient ethos among federal prosecutors is partly to blame. They often pursue high-value targets like Bruno under the vague honest services law because assembling the right evidence to try them for bribery or extortion seems like far too much trouble. The background facts of Bruno’s case, which involved millions of dollars in “consulting” fees paid by clients with interests before the Legislature, certainly offend our sensibilities. But this is a nation of laws, and if prosecutors think that Bruno’s actions amounted to accepting bribes, they should be required to prove the elements of the crime beyond a reasonable doubt.
The lion’s share of blame belongs not to Congress, the courts or even the feds. It belongs to the state Legislature, which has failed to mind its own business by requiring the disclosure of conflicts of interest such as the ones that Bruno concealed. Such disclosures can neutralize improper influence, and many states have ethics rules that require them.
Instead, New York has a vague statute prohibiting the use of an official position “to secure unwarranted privileges.” This language is as bad as the federal honest services law. It risks letting real miscreants walk while instilling fear in well-intended lawmakers at odds with state prosecutors.
What kind of “privilege?” When is a privilege “unwarranted?”
A law like this would make Congress proud.
Instead of insisting on common sense disclosure requirements, Manhattan District Attorney Cyrus Vance is championing a new bill that runs the risk of replicating the flaws of the federal honest services law at the state level. The proposed new law would make it a crime to breach a “duty of faithful service,” defined as “conduct that is free of self-dealing and free of unlawful or unauthorized conferral or intended conferral of a benefit to a public servant.”
“Unlawful conferral” of a benefit is, of course, already unlawful, though this new law would raise the stakes a bit by making an unsuccessful “intent” to confer such a benefit as illegal as the completed act. But what makes the conferral of a benefit “unauthorized?” State employees, like the rest of us, often receive presents and personal favors without prior authorization from anyone, and most of these have nothing to do with their jobs.
A law enforcement-oriented approach to political malfeasance will inevitably involve vaguely defined crimes and opportunistic prosecutions. Instead of buying future trouble with a vague new criminal law, the Assembly should move forward on a stalled ethics reform proposal that would expose public officials’ private business dealings to sunshine.
Only disclosure will empower voters to make fundamentally political judgments about who is and is not worthy to hold public office in New York.
This piece originally appeared in Albany Times Union
This piece originally appeared in Albany Times Union