Friday, July 1, 2016

McDonnell Is Nothing New

Some folks have expressed critical views of the Supreme Court's opinion in the McDonnell case. But they are forgetting several important points:

  1. This was a unanimous decision by the Court.  There were no dissents.  There were no concurring opinions.  It was clearcut!
  2. This decision does not put a stop to prosecutions for bribery and extortion. Cases in which there is a receipt of money for official acts can still be prosecuted. (Evans v. United States).
  3. This decision does not create any new limit to the bribery/extortion statute.  It has always existed. (see United States v. Birdsall - a 1914 decision).

So what happened here?  The government tried to push the envelope further than permitted and they were caught.  This is no different than back in the 1980s when they tried to bring mail fraud cases based on intangible rights as opposed to property, a requirement of the statute.  The Supreme Court in 1987 issued the McNally decision to place the government on notice that developing a new theory that exceeded the language of the statute would not be permitted.

Bottom line - Congress writes the laws and government prosecutors need to stay within the language provided to them.

(esp)

https://lawprofessors.typepad.com/whitecollarcrime_blog/2016/07/mcdonnell-is-nothing-new.html

Judicial Opinions, Prosecutors | Permalink

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