The Volokh Conspiracy

These types of honest services mail fraud cases are pretty much bunk.

I agree that a state employee should have to take a kickback or bribe in doling out contracts for it to apply at all.

I too was surprised, since she was released so dramatically as soon as the the case was argued, I thought there would be NOTHING to the government's argument. But it was apparently not frivolous, and did have some district court support, if unpersuasive. Still, the federal government prosecuted her for making a procurement decision that SAVED IT MONEY- you wonder how the heck a jury didn't laugh the AUSA out of court.

As is so often the case with Easterbrook, he writes a really good opinion. He truly is one of the best writers working as a judge in this country today.

After giving the decision a quick read, I'm tempted to think that the judges went out of their way to avoid giving outsiders ammunition for a charge that the prosecution was politically motivated. Despite several pages of analysis and citations essentially establishing that no one had ever been convicted under these statutes under even remotely similar circumstances, and still more pages of analysis and hypotheticals indicating that well established canons of statutory construction militated against any such prosecution, the court then takes a sudden turn to complain about how vague the statute is, as if that vagueness were (by itself) to blame for the prosecution.
Yet the court's own analysis shows the opposite: similar prosecutions have not occurred, nor -- given these precedents and canons of construction -- should they.
Indeed, the very canon of construction they rely upon -- the Rule of Lenity -- essentially states that if there are two different interpretations of a statute, under one of which an act is a crime, and under the other of which it's not, the statute should be interpreted against criminalizing the conduct. In other words, this prosecution should never have occurred: the fact that it was possible to interpret the statute the way the prosecution did does NOT mean that it was correct (or acceptable) for it to have done so. On the contrary, a prosecution under such circumstances (no supporting precedent, canons of construction pointing the other way, and clearly unacceptable consequences if the prosecution's theory is applied to other routine events) is an abuse of that prosecutor's discretion, plain and simple.
The likely explanation for the court's failure to draw the conclusion that its own analysis so clearly called for is that the court (like all courts) did not want to be drawn into a political dispute. So they crafted the decision so that any lawyer (or prosecutor) reading it would clearly get the message (i.e., that this prosecution should never have taken place), but there would be no passage in the decision that the media/politicians could quote as saying so in so many words.
[also posted at TPM Muckraker]

Given that the prosecutor has deprived the public of honest services by making an error of law, gained by it (since he was not fired in the recent US attorney purge), and arguably did so for improper (political) considerations, could the prosecutor be prosecuted under his own theory?

And if so, could judicial estoppel possibly be used to prevent the prosecutor from trying to get off his own petard?

It would, after all, serve him right.

I think the commenter's right that the court took the immediate outrage into account in crafting the op, but still ... didn't Easterbrook call the feds' theory "preposterous"?

Those unused to reading such opinions may not find that strong, but it's a very, very harsh thing to write.