The federal prosecution system thrives on laws that are nebulous and elastic enough to cover every situation imaginable. One such law prohibited depriving citizens of “…the intangible right to honest services.” The US Supreme Court ruled that except in narrow circumstances this law was invalid. It’s clear the Supreme Court was not happy with the un-fairness of this voodoo type law.

The Wall Street Journal’s Daniel Henninger on July 1, 2010 reported “Justice Antonin Scalia ….referred to the honest-services law…. as ‘this indeterminacy.’ “He calls the legal duties required of individuals under it ‘hopelessly undefined,’ a ‘smorgasbord’ written in ‘astoundingly broad language’ and ‘to put it mildly, unclear.’ His most stupendous example was a court ruling that one could be found in violation for a scheme ‘contrary to public policy.’ ”

How could a criminal charge under such a law ever be defended against? How can one even know what it means? To bring the charge was to ordained a conviction. The Supreme Court found the law unconstitutional (unless of course there was a criminal kickback involved which in itself would be a crime).

However, in an attempt to keep its power, the DOJ surreptitiously began to lobby Congress to rewrite the law around what the Supreme Court ruled against. And their lobbying ability is greater than the top ten US corporations combined. The Wall Street Journal, in an editorial entitled “Dishonest Prosecutorial Services“, condemned the effort saying that the law was unconstitutionally vague and the Supreme Court “decision removed a law that had been abused by prosecutors to criminalize honest business. The DOJ used its lobbying ability to get some in Congress to try to end-run that decision with new legislation to give prosecutors free rein again.” (October 27, 2010) They wanted to bring it back in all its unfairness.

The DOJ has great resources to lobby and promote these type laws. The public has no input because they are not aware that it’s happening, are not aware of the way this bureaucracy operates, and there is no system in place that could make them aware. The answer is to stop this bureaucracy from lobbying for anything. The second change needed is to establish a system that makes citizens aware and allows them to become informed on the matter and present opposing views. Without that, there is no downside to Congress doing just what the DOJ asks. Opposing views by focused citizens groups would make an enormous difference.

Some argue that they have already created an atmosphere where any action can be interpreted as criminal. When deciding whether to prosecute or not, the only factor consideration now is can they convince a jury to bring in a conviction or not. That is immoral and needs to be corrected.

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