Dishonest Services in N.Y.

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The New York Sun

The Gods of Irony couldn’t have cooked up anything more startling than the arrest today on federal charges of a leading New York state senator, Malcolm Smith, a Democrat, and one of the few Republicans on the New York City council, Dan Halloran. At the center of the indictment just handed up is the allegation that they conspired to deprive the New York City Republican Party the honest services of its committee leaders.

It happens that, on the same day, one of the most distinguished law professors in the country, Richard Epstein of New York University, published a column reprising the prosecution for honest services fraud of the former Republican leader in the Senate in Albany, Joseph Bruno. We were alerted to this by the futureofcapitalism.com. Professor Epstein called Bruno’s continued prosecution a “criminal justice travesty.”

So this is a moment to draw distinctions. These columns have covered the controversy over honest services law with great interest in part because the law was one of the prosecutorial weapons used against our erstwhile colleague, Conrad Black. He was one of those who, when wrongly convicted, stood on principle and appealed to the United States Supreme Court. Conrad Black won a unanimous ruling — nine to zero — saying that the way the law was used against him was unconstitutional.

The honest services law is unconstitutional, the Supreme Court ruled, when it is used in a vague way, as it was in Conrad Black’s case and in many scores of others. What the Supreme Court said is that the honest services fraud statute could be used only in certain narrow cases, such as old-fashioned bribery. Conrad Black was never accused of bribery, or anything close to it, and hence the unanimity of the Supreme Court’s ruling in his favor.

It doesn’t look like Conrad Black’s famous victory — or that of Jeffrey Skilling of Enron, who also won his honest services case at the Supreme Court — is going to do much good for Messrs. Smith and Halloran. We’re not suggesting they’re guilty; the facts will be tried by a jury. We are suggesting that the nature of the charges against them do involve bribery of the sort that the Supreme Court suggested could be covered by the honest services statute.

The allegation is that there was money passed in the course of Mr. Smith’s effort to get listed on the Republican line for mayor of New York. So the charges, if true, couldn’t be more classic and more offensive to honest government. Like other New Yorkers, we look forward to an aggressive prosecution. There will be issues; the case apparently involved a sting. So we look forward not only an aggressive prosecution but an aggressive defense. Let it be noted, though, that old-fashioned bribery is just a very serious wrong.

* * *

That it was allegedly committed to gain access to the Republican line by a Democrat like Mr. Smith carries its own irony. We don’t suggest the GOP itself is guilty of wrong-doing as an institution. But it’s hard to imagine a Democrat trying to buy his way onto its mayoral line if the GOP as an institution in New York stood in a more committed way for the kind of free-market, limited-government, constitutional, conservative principles that are being pressed by the GOP at the national level. The Republicans in New York have tried to get ahead by going along for so many years that it’s not exactly surprising to read of one Democrat thinking the party might be a handy stepping stone. It’s something for New York Republicans itself to think about as this drama unfolds.


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