Monday, December 14, 2009

From Harper's

By Scott Horton

Federal prosecutors who brought a controversial corruption prosecution against trial lawyer Paul Minor and two Mississippi judges, Wes Teel and John Whitfield, suffered a one-two punch in federal courts this week. The result is that Minor, Teel, and Whitfield are now all likely to be freed.

An opinion handed down in the Fifth Circuit Court of Appeals in New Orleans struck down convictions for bribery, finding that the charges, even if true, did not actually constitute a crime. The Bush-era Justice Department’s case was an attempt to criminalize campaign funding practices in which an attorney supported the election campaign efforts of Democratic judges. No comparable cases were ever brought against Republican judges or those who financed them. The charges took the novel view that campaign contributions and campaign finance assistance can be viewed as bribes paid to judges. But this rationale was applied to only one side of the political ledger.

Even if Minor, Teel, and Whitfield are released, however, the prosecutions have had a strong impact on the Mississippi judiciary. After the cases were brought, campaign contributions to Democratic candidates dried up, and Republican candidates were able to sweep to control of the state’s judiciary.

The Court of Appeals decision left the remaining counts, based on the honest services fraud statute, standing. However, in Washington on Monday, the Supreme Court heard oral argument in a group of cases challenging the honest services fraud statute, and based on oral argument, it seems plain that a majority in the Court have concluded that the statute is unconstitutional. Led by Antonin Scalia, justices ridiculed the statute at the hearing, and expressed their strong disagreement with the construction that the Justice Department put on it. Thus, if the Supreme Court follows the course suggested at oral argument, the remaining counts against Minor, Teel, and Whitfield will also fall.

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