By Dan Slater
Wall Street Journal, Law Blog
February 5, 2009
http://blogs.wsj.com/law/2009/02/05/the-long-arm-of-honest-services-fraud-could-reach-cardinal/
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| Cardinal Roger Mahony |
Remember Cardinal Roger Mahony, the archbishop of the nation’s largest archdiocese? Last week, the Journal reported that he’s back on the hot-seat. A federal grand jury has issued subpoenas and begun calling witnesses in a probe to see whether top church officials tried to cover up the sexual abuse of minors by priests.
The somewhat unusual crime of “honest services” fraud is one possible weapons federal prosecutors could use against church officials, if they find sufficient evidence of criminal activity to bring charges. Today, in this WSJ column, the Law Blog takes a look at honest services fraud and how it could apply in the church case.
The concept is simple enough. One court has described honest-services fraud as “the public not getting what it wants and deserves: honest, faithful, disinterested service from a public employee.” In other words, it redresses the loss — not of property — but of an intangible right.
The federal law seems ideal for prosecuting public officials caught up in kickback schemes. But prosecutors have also used it to go after private individuals, such as three men’s-basketball coaches at Baylor University who schemed to obtain credits and scholarships for players, in violation of NCAA rules. Baylor, the court found, was deprived of honest services.
It’s not clear how an honest-services legal theory would apply in the archdiocese case, though Notre Dame Law School Professor G. Robert Blakey, who had a role in drafting the honest-services fraud statute, hypothesized thusly: An abusive priest would injure a child, but the priest would simply be moved to another parish, without anyone notifying the new parishioners about the priest’s history. By not being candid with the new parishioners, the thinking goes, the church hierarchy is denying them honest services.
A spokesman for the archdiocese declined to comment but has said previously that it is cooperating with the investigation and believes any pertinent matters are in the distant past. The U.S. attorney’s office in Los Angeles declined to comment.
Loyal LB’ers: Judges have criticized the honest services statute for being vague, imposing insufficient constraint on prosecutors and giving insufficient notice to defendants. It’s still very early in the grand-jury investigation, but should prosecutors be looking at a possible honest services charge against the cardinal?
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