Friday, April 20, 2007

judge frank easterbrook must read blogs, and newspapers. . .

or, why frank easterbrook is perhaps the
smartest judge on the seventh circuit. . .

you may recall that, a couple
of weeks ago
, wisconsin's u.s.
attorney steve biskupic (a federalist
society member, and mostly-loyal bushie
on-again/off-again name on kyle sampson's
and alberto gonzales' hit-list termin-
ation spread-sheets, we now learn)
had one of his highest-profile-"graft"
prosecutions, and subsequent con-
victions (of a democrat, during a
closely-contested election) summarily
vacated in the seventh circuit by a
federal appellate panel led by judge
frank easterbrook
-- replete
with a string of acidic one-liners from
the bench [that the case was "beyond thin"],
and, as such, should be summarily-vacated.

that was extraordinarily colorful jargon from
such a reserved, u. of c. educated, reagan
appointee -- one widely-regarded an almost
and, so -- this reversal was widely cheered by
talkingpointsmemo, and firedoglake bloggers.

rightly so, as it was powerful evidence that
the wisconsin prosecution of a "beyond-thin"
democratic "graft" case was the proximate
cause of the removal of steve biskupic's
name from kyle sampson's "hit-list". . .

now, my bet is that easterbrook's law
clerks -- or easterbook himself -- read
one or more of those accounts. . .

for it seems -- when judge easterbrook sat down
to actually write his opinion, he chose much less-
colorful verbiage with which to express his holding.
while there would be nothing whatsoever improper
with crafting one's opinion to avoid unduly teaking
the administration's nose -- i mean, after all, georgia
thompson was immediately released -- i do absolutely
think easterbrook must have seen some blog-content,
and decided (smartly, in his own political circles)
against becoming another sound-bite
to hang alberto gonzales with. . . so, i think he
didn't want his decision to be any sort of flash-
point vis-a-vis the administration. . .

see, his opinion -- as written (pdf) -- goes to rather
considerable lengths to suggest that the fault
here lies with congress, and that both the
prosecutor -- and the wrongly-convicted -- could
very easily have made their good-faith decisions
in error, based on the vagueness of the statute
in question. so -- he urges a fresh look at
all of this, by congress.

when we part the curtains, though, it
seems plain that he is creating some cover
for u.s. attorney biskupic, while still
chastising the government's excessively
punitive reading of an ambiguous statute.
let's take a look, and see what he wrote, shall we?

. . .We held in United States v. Bloom, 149 F.3d 649, 655
(7th Cir. 1998), that “[m]isuse of office (more broadly,
misuse of position) for private gain is the line that separates
run of the mill violations of state-law fiduciary
duty . . . from federal crimes.” The United States accepts
this as the governing legal standard. According to the
prosecutor, Thompson “misused” her office when she lent
it to political ends (even if the “political” end was just a
lower price, about which incumbents could crow) and
obtained a “private gain” when she got a raise. The
prosecutor adds that, by currying favor with Farley,
Thompson improved her job security. This is implausible; Thompson already had security as a civil servant.
But cash is a form of gain. As we have explained, we proceed on the assumption that steering the contract to Adelman
Travel is why Thompson received a raise. . .

The United States has not cited, and we have not found,
any appellate decision holding that an increase in official
salary, or a psychic benefit such as basking in a superior’s approbation (and thinking one’s job more secure), is the sort of “private gain” that makes an act criminal
under §1341 and §1346. The United States does rely on a few decisions of district courts, e.g., United States v. Sorich, 427 F. Supp. 2d 820, 829 (N.D. Ill. 2006); United States v. Munson, 2004 U.S. Dist. LEXIS 14274 *3 (N.D. Ill. July 27, 2004), but we do not find them persuasive. We now hold that neither an increase in salary for doing what one’s superiors deem a good job, nor an addition to one’s peace of mind, is a “private benefit” for the purpose of §1346. . .

Sections 666 and 1346 have an open-ended quality that
makes it possible for prosecutors to believe, and public
employees to deny, that a crime has occurred, and for both
sides to act in good faith with support in the case law. . .

Courts can curtail some effects of statutory ambiguity
but cannot deal with the source. This prosecution, which
led to the conviction and imprisonment of a civil servant
for conduct that, as far as this record shows, was designed
to pursue the public interest as the employee understood
it, may well induce Congress to take another look at the
wisdom of enacting ambulatory criminal prohibitions.
Haziness designed to avoid loopholes through which bad
persons can wriggle can impose high costs on people the
statute was not designed to catch. . .

Thompson’s conviction is reversed, and the case is
remanded with instructions to enter a judgment of acquittal. . .

smart. i do not entirely approve,
but one must admire his prowess
with naught but a pen, and stack
of precedents. . . and, it's
politically adroit, to boot.

[odd, though, that the section of
the statute most-quoted is section 666. . .]


Anonymous said...

rightly so, as it was powerful evidence that
the wisconsin prosecution of a "beyond-thin"
democratic "graft" case was the proximate
cause of the removal of steve biskupic's
name from kyle sampson's "hit-list". . .

so they do, but... ms. thompson was indicted in January 2006 and the trial was over by June; Biskupic was added to the list in October 2006.

that time line makes it hard to figure how he brought the case in order to get off the hit list - eerie prescience plus bad communication?

Tom Maguire

nolo said...

i hear you, but i think
the theory would be that
in the endless iterations
of "who went on" and "who
went off" the list, mr.
biskupic was being considered
for replacement -- in the
karl rove "math", the republicans
really almost lost all of wisconsin
in novemeber 2004 -- and only be-
cause of what-turned-out-to-be-
spurrious claims of democratic
"vote fraud" in the collar precincts outside milwaukee -- i happened to be on the ground, there for kerry, that day -- did wisconsin finally slip into the red, state-wide. . .

so -- biskupic may have been
targeted for the "math-offense",
and then only later removed, after
beginning the thompson case -- ONLY
still later to be returned to the
list. . . ultimately, though, he
was retained, not canned.

so, i think without karl rove's
r.n.c. emails, we'll never be sure. . .

thus, it remains open to
sevral interpretations. . .

great comment!

do return. . .

Anonymous said...

I think he's being more critical of the Administration than you suggest. The problem with "ambulatory" criminal provisions is that they can be abused by overzealous prosecutors. Judge Easterbrook surely knows that the executive has great discretion whether or not to prosecute somebody under any particular law.