Tuesday, April 24, 2007

Georgia, Scott and Chuck

Last week the Seventh Circuit released its opinion in the Georgia Thompson case. One of the things that the court was concerned about was the rather vague nature of the statutes applied.

For example, one of the laws that she was convicted of makes it a crime to use the U.S. mails in a scheme or artifice to defraud, including depriving someone of the intangible right to honest services. The prosecution theory was that taking into account her bosses' political concerns deprived the state of honest services.

Another, in pertinent part, makes it a crime for a federal agent to misapply government property or funds. The theory was that, by allowing improper factors to affect the award of a travel contract and to divert it from the rightful recipient, Thompson misapplied state funds.

The panel acknowledged - at least implicity - that the language of these statutes can be made to fit the conduct in which Thompson was alleged to have engaged, but concluded that such a reading would criminalize conduct that Congress did not intend to criminalize and, with respect to which, government employees would have no advance warning of its "criminal" nature.

One can use this to make partisan hay and suggest that U.S. Attorney Steve Biskupic "must have been" pressured politically to take such an aggressive view of the law.

But this type of aggressive application of criminal statutes to what was formerly regarded to be the grimier side of politics as usual is not new or limited to Republican-appointed prosecutors.

In fact, one can argue (and I have) that the convictions of Scott Jensen and Chuck Chvala fall into the same category. The statute that they were convicted of prohibits a state officer or employees from exercising a "discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another ...."

You could argue that using legislative resources for political purposes falls within this language. But you can also argue that it is the very essence of legislative leadership. It is the leader's job to get a majority for what he or she believes to be the best policies for the state.

The decision upholding Chvala's conviction pointed to the Senate Policy manual's prohibition of campaigning on state time or with state resources. But how different is this than Biskupic's reliance on Thompson's supposed departure from the state's elaborate scoring procedure?

The cases are different in that it is clear what Chvala and Jensen were up to and not so clear in the Thompson case. But Chvala and Jensen arguably had no more idea that they were committing a crime (as opposed to ignoring legislative rules that everyone had long ignored) than, according to the Seventh Circuit, Georgia Thompson had.

Part of the increasing criminalization of politics is driven by a desire for partisan advantage, but some of it stems from a zeal to combat public corruption. I think the latter is what happened in all of these cases.


xoff said...

I beg to differ. Chvala and Jensen both knew full well what they were doing was illegal. They just thought the "everybody does it" defense would get them off.

If Scott Jensen, a very smart lawyer/politician, didn't know it was illegal to hire someone on the state payroll full time to do nothing but raise political contributions for Republicans, he should give back his Harvard degree.

Jay Bullock said...

It is the leader's job to get a majority for what he or she believes to be the best policies for the state.

So then state-financing of all elections should be okay, then, right? After all, if campaigning on the taxpayer's dime is okay for incumbents, then let's just apply it to everyone, eh?

Anonymous said...

No doubt this will sound like I'm griping, but Judge Easterbrook flat out rejected much the same argument (the application isn't what Congress intended) in United States v. Mitra, which I argued before him in 2005. See: http://www.ca7.uscourts.gov/tmp/2J17V024.pdf Oh, well, different day, different outlook...

Anonymous said...

Could be worse, you may find yourself in front of Annette Ziegler not knowing whether it was a "strict construction" or a "gut check" day.

Rick Esenberg said...

They cdertainly know, as I said, that it was prohibited by legislative rules. But did they have reasonable notice that it was a felony? Those are two very different things.

Jay, that doesn't follow at all. My problem with public financing is that I don't think it can be done without impinging on free speech and involving the state in who gets to run.

Lew, my condolences. I'll take a look at that case.

Anonymous said...

So it's okay for a legislator to break the law if he thinks it's "only" a misdemeanor?

You must have been educated by nuns like the one I had who parsed the difference between a venial sin and a mortal sin as but a penny -- under a buck, venial sin; a buck or more, mortal sin.

And when I asked about the effect of inflation, she told me it was a sin to ask, too -- but never did answer my question as to what kind of sin that was.

You are lacking a good answer, too.

Rick Esenberg said...


You must attend to relevant distinctions. I did not say it was "ok." But there are a lot of things that are not "ok" but that are also not crimes. If we are going to throw someone in jail, due process requires adequate notice to a person that their conduct is not simply a violation of legistlative or work rules or even civilly actionable, but, in fact, a crime, i.e., something that you can go to jail for.

xoff said...

Please educate us non-lawyers. Are misdemeanors not crimes? That is news to me.

Rick Esenberg said...

Bill, yes they are crimes but what misdemeanor do you think Jensen and Chvala should have been charged with? They were convicted of violating s. 946.12(3), the language of which I quoted. It is a class I felony.

My point - and I'd think a good liberal like you would agree - is that due process requires some notice that what you are doing violates the criminal statute that you are charged with breaking. Disregarding, in Chvala's case, the Senate Policy Manual (not even a misdemeanor as far as I know), doesn't cut it. I'm not saying it was all right to do it, but sending people to jail behind it is another matter.

xoff said...

There were 19 felony charges filed against Chvala for a variety of acts. The one you cite, I believe, happens to be the one on which he was convicted as part of a plea agreement.

What he did was highly illegal and he knew it.

Same with Jensen.

To answer your question: I did not want them charged with any misdemeanors. I think they were appropriately charged and Chvala has paid his debt. Jensen, unlike Georgia Thompson, remains at large while awaiting appeal. Where is the justice in that?

Anonymous said...

Rick Eisnenberg writes:
"Part of the increasing criminalization of politics is driven by a desire for partisan advantage, but some of it stems from a zeal to combat public corruption. I think the latter is what happened in all of these cases."

Seems you're trying to bury Karl Rove's coordinated strategy to cage voting lists.

If the political activity is actually criminal, then there's no "criminalization" taking place.

But when men of bad faith intentionally misread the Constitution--and willfully impeach a sitting president for his personal matters (&/or lying about those personal matters), then yeah, that kind of partisan politics is already criminal, on its face.