Wednesday, December 16, 2009

Herenton and "Honest Services"

Posted By on Wed, Dec 16, 2009 at 9:23 AM

What's up with the federal investigation of Willie Herenton? I wish I knew.

But only the prosecutors and grand jurors know that. Barring some developments in the next 24 hours, my guess is that prosecutors are biding their time and not throwing in the towel.

The Herenton grand jury was supposed to meet this week but, according to Herenton's attorney Robert Spence, the meeting was canceled. This grand jury's term ends at the end of this month.

Herenton acknowledged in October that he received a target letter, which usually foreshadows an indictment. Since then, however, the U.S. Supreme Court has heard arguments in two cases involving "honest services" of corporate executives. The law has also been used to prosecute politicians including former Tennessee state senator John Ford.

In a story in The New York Times last week, reporter Adam Liptak wrote that "a federal law that is a favorite tool of prosecutors in corruption cases met with almost universal hostility from the justices."

In the broad sense, I deprive my employer of my honest services when I take a phone call to arrange an early tennis match. In a more serious context, Fidelity Investments apparently felt it was being deprived of the services of some employees playing fantasy football on company time and fired them. In a criminal context, Ford was convicted in his trial in Nashville of depriving his constituents of his honest services when he secretly contracted for consulting contracts with companies providing health care services.

In his letter in October, Herenton raised the issue.

"I find it to be quite revealing and insightful that the constitutionality of the same federal statute that is referenced in the target letter is at this very moment being debated by members of the United States Supreme Court. The concern I have with the reference to this statute is the same one expressed by Justice Scalia — 'Without some coherent limiting principle to define what intangible right of honest services is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs."

The fact that the Memphis grand jury continued to meet after Herenton's letter was received by Attorney General Eric Holder and the Department of Justice could indicate that the former mayor's last ditch appeal was rejected and that Memphis prosecutors were given the green light. But that was before the most recent Supreme Court comments came out last week.

Spence is doing what a lawyer is supposed to do — try to keep his client out of court and, if successful, take credit for doing same. But, as Spence told The Commercial Appeal, it is too early to do a victory dance.

In Mississippi last week, a long-running political corruption case involving trial attorney Paul Minor and two judges was reviewed by the Fifth U.S. Circuit Court of Appeals. Some parts of Minor's conviction were thrown out, but the "honest services" charges were allowed to stand. That doesn't seem to square with the theory that all "honest services" cases are on hold pending a definite statement from the Supreme Court.

Memphis federal prosecutors Larry Laurenzi and Tim Discenza are veterans who will bend over backwards to be fair and thorough in the Herenton case. Federal rules require them to seek an indictment only if they believe there is a strong likelihood of a conviction. Laurenzi prosecuted Edmund Ford. After a jury acquitted Ford, prosecutors dropped charges against Joseph Lee. DiScenza had a perfect record in Tennessee Waltz cases that went to trial. I have seen him operate for 20 years and he doesn't take a case to trial unless he thinks he can win it and that it merits prosecution.

William Campbell, the former mayor of Atlanta and also a former federal prosecutor and friend of Herenton, was out of office for two years before he was indicted and acquitted on federal corruption charges. He was indicted again two years later (2006) on federal tax evasion charges and convicted and served two years in prison. Federal prosecutors can be tenacious. And Laurenzi, among other things, is a tax specialist.

So we will have to wait and see.

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