The trend has underlined the prosecutorial temptation to crusading self-righteousness. The people charged with enforcing federal law seem to thrill at finding new ways to prosecute politically unsympathetic people who have behaved badly, even when their behavior wasn’t clearly illegal.
The good news is that the Supreme Court is resisting this trend, and the lower courts may finally be starting to follow suit. In a pair of 9-0 decisions this month, the justices tossed convictions against two men indicted by the Southern District of New York under U.S. Attorney Preet Bharara, who made himself a media darling for his campaigns against Wall Street and Albany and ostentatious defiance of the Trump White House.
In one case, Joseph Percoco — between two stretches as a top aide to New York Gov. Andrew M. Cuomo (D) — was paid $35,000 by a real estate development company to lobby a state regulatory agency on the company’s behalf. He was convicted of “honest-services fraud.”
Honest-services fraud can clearly cover bribes to public officials. But Percoco wasn’t a public official at the relevant time, and the jury was instructed that a private citizen can be guilty of defrauding the public if the citizen is sufficiently influential.
All justices agreed: That instruction was too ambiguous. Parlaying past (or future) public service into economic benefit might be unethical, but it’s not uncommon. Prosecutors’ sweeping interpretation of the law would give them too many targets who couldn’t know when their behavior crossed the criminal line.
In the second case, a New York developer, Louis Ciminelli, helped engineer a nonprofit’s bidding process to ensure his firm would be selected. Wire fraud involves taking a victim’s “money or property.” But Ciminelli was charged with wire fraud and convicted on the theory that he deprived the nonprofit of “economically valuable information.” Once again, the justices said prosecutors had cast too wide a legal net: “Because the theory treats mere information as the protected interest, almost any deceptive act could be criminal,” Justice Clarence Thomas wrote.
These unanimous decisions are part of a pattern. Last term, the justices ruled for two doctors convicted under the Controlled Substances Act for allegedly writing bad prescriptions because prosecutors watered down the law’s intent requirement. (Justice Stephen G. Breyer wrote the opinion.) In 2020, the court tossed the 2016 “Bridgegate” fraud convictions of aides to Chris Christie, New Jersey’s Republican governor at the time, because prosecutors had improperly defined closing traffic lanes as taking property. (Justice Elena Kagan wrote the opinion.) In 2016, the justices reversed former Virginia governor Robert F. McDonnell’s corruption conviction because of prosecutors’ overly broad definition of an “official act.” (Chief Justice John G. Roberts Jr. wrote the opinion.)
The vote in each of those three cases? 9-0, 9-0, 9-0.
Lower courts have tended to accept federal prosecutors’ expansive theories of criminal responsibility, especially when the defendant clearly did something distasteful. Because the Supreme Court usually doesn’t hear appeals until years after a trial, it may be less influenced by moral outrage and better positioned to see the constitutional threat from vague laws.
But lower courts might finally be getting the justices’ message. The day before the Supreme Court’s recent New York decisions, a panel of the U.S. Court of Appeals for the 1st Circuit in Boston — by a 3-0 vote — overturned honest-services fraud and other convictions of two parents who paid large sums for their children to be admitted to private colleges, a part of the “Varsity Blues” admissions scandal that led to dozens of indictments and sentences.
In the 1st Circuit case (like the Supreme Court cases mentioned above) the dispute wasn’t mainly about what the defendants did — of “guilt” or “innocence” in the true-crime sense. It was about whether prosecutors had stretched laws to criminalize things that might not be criminal. The 1st Circuit concluded they had. Under the prosecution’s dubious theory of the case, the universities were both victims of the two parents’ bribes and the intended recipients of the bribes.
Felony prosecution isn’t the only way to punish ethical violations when the law is murky. Lawsuits, firings and professional sanctions are often available — or, in the case of politicians, elections and impeachments. And states typically have broader criminal jurisdiction than the federal government.
But federal prosecutors have professional and institutional incentives to expand their remit. Andrew C. McCarthy, a former federal prosecutor in the Southern District of New York who writes for National Review, tells me that in his former office, prosecutors are “encouraged to be creative, they’re encouraged to work the margins of statutes.”
The private economy puts a premium on creativity, McCarthy points out. Knowledge-class professionals are trained to advance by thinking outside the box. But government is not the private economy. When it comes to prosecutions, the impulse to push limits and break new ground can collide with the “principle that the average person needs to understand what the law prohibits,” as McCarthy puts it.
While creative theories in business and technology tend to promote economic progress, creative theories of criminal culpability tend to aggrandize the federal government and erode civil liberties over time. Political prosecutions are a danger, but so is overcharging by ambitious, media-savvy prosecutors whose main interest is their own advancement and notoriety. Americans might need to worry more about the propensity of prosecutors to deprive the public of honest services when they stretch the limits of the law.