Supreme Court Strikes a Blow Against Prosecutorial Overreach — Again

Two Supreme Court opinions issued without dissent on cases of major import is rarer than coming across a whole set of hen’s teeth. That is what happened on Thursday, when all nine justices tossed a pair of convictions against two officials from Governor Cuomo’s administration, including one of his friends and closest aides, Joseph Percoco. We can’t say we are surprised, because we predicted this outcome, even if prosecutors stubbornly could not. The convictions the Nine threw out were of Mr. Percoco, who was accused of taking unlawful payments from a real estate developer, and Louis Ciminelli, who owned a construction firm and was found guilty of bid-rigging in a project endorsed by Mr. Cuomo. In returning both cases to appellate courts for further consideration, the court sends an unambiguous signal that the prosecutors and lower courts are not alright.Writing for the court in Percoco v. United States, Justice Samuel Alito found that a jury instruction that focused on whether the defendant had a “special relationship” with the government was “not the proper test for determining whether a private person may be convicted of honest-services fraud.” Instead, that offense must be defined with the “clarity typical of criminal statutes” and not an “ill defined category of circumstances.”In a concurrence, Justices Clarence Thomas and Neil Gorsuch went even farther, noting that “no set of instructions could have made things any better” and “no one knows what ‘honest-services fraud’ encompasses.” They add that the “Constitution’s promise of due process does not tolerate that kind of uncertainty in our laws—especially when criminal sanctions loom.” It is of a piece, they write, with the court’s “vagueness jurisprudence.”Declining to craft clarity where Congress has left a muddle, Justices Thomas and Gorsuch reach for the example of Michelangelo. “Congress,” they say, “cannot give the Judiciary uncut marble with instructions to chip away all that does not resemble ‘David.’” That, they warn, is “not a path the Constitution tolerates.” If the seven other justices did not go quite so far, we’d like to think that they went far enough to warn prosecutors off such corruption cases. Then again, we did the same, writing in November that anyone reading the “New York Post’s Charles Gasparino” or “Future of Capitalism’s Ira Stoll” and the editorials of the Sun “could have figured out far in advance that the case against Percoco could come a cropper when the matter reached the Nine.” We noted federal prosecutors’ “congenital inability to conclude successfully public corruption cases against state officials.” One of the most striking examples was the prosecution of Governor McDonnell of Virginia, for accepting gifts from a constituent. His conviction was tossed out by a unanimous Supreme Court — in a rebuke to the G-man who, in Jack Smith, is now pursuing President Trump. Two more convictions were tossed in connection with New Jersey’s “Bridgegate,” adding to what we called the “wreckage of previous attempts by the Justice Department to prosecute state officials.” Most tragic, we could say, was the prosecution of the late Sheldon Silver, whose saga would strike Kafka’s Josef K., from “The Trial,” as straightforward. A conviction was tossed, a new trial was held, and Silver was convicted again. Parts of that sentence were in turn tossed by riders of the Second Circuit. Silver died in prison. When he was first handcuffed, we asked “Are we the only paper that is not entirely comfortable” with federal prosecutors raiding New York?We are a newspaper, not a lawyer, but then again, too, we recall the maxim of George Orwell, a journalist: “To see what is in front of one’s nose needs a constant struggle.” We can’t help wondering, too, whether the real problem here is an institutional refusal of the Justice Department to give due deference to opinions of the Supreme Court, never more shocking than when the Court holds prosecutors to a strict view of what is meant by due process.

Supreme Court Strikes a Blow Against Prosecutorial Overreach — Again

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