What to Watch for in the FIFA Case, Part 5: Vague Laws and Prosecutorial Discretion

ZURICH, SWITZERLAND - JUNE 02: A FIFA logo sits on a sign at the FIFA headquarters on June 2, 2015 in Zurich, Switzerland. Jo
ZURICH, SWITZERLAND - JUNE 02: A FIFA logo sits on a sign at the FIFA headquarters on June 2, 2015 in Zurich, Switzerland. Joseph S. Blatter resigned as president of FIFA. The 79-year-old Swiss official, FIFA president for 17 years said a special congress would be called to elect a successor. (Photo by Philipp Schmidli/Getty Images)

This is one of a series of posts discussing what the FIFA case might tell us about the American criminal justice system. Click here for the introduction, here for "Part 1: Pretrial Publicity," here for "Part 2: How the Government's Story Develops," here for "Part 3: The Special Problem of the 'Cooperating' Witness," and here for "Part 4: The Challenge of Preparing a Defense."

In previous posts, I've discussed some of the difficulties that await the FIFA defendants and others charged with federal white-collar and corruption-related offenses. This may not have generated much sympathy for these defendants, on the theory that at some level they deserve what they're getting.

Even staunch advocates of the presumption of innocence will tend to assume, deep down, that people get targeted by federal prosecutors for a reason. So a typical response might be -- if you don't want to go through this kind of process, keep yourself out of it. Don't break the law, and just to be safe, stay away from the gray areas. In short, conduct yourself in such a way as to stay out of the reach of even an aggressive, "creative" prosecutor.

Sounds logical. Unfortunately, it's impossible. The problem is that within the legal framework applicable to white-collar and public corruption offenses, there's no clear set of rules as to what can and can't be done. The federal criminal statutes are drawn extremely broadly -- criminalizing, for example, any "scheme or artifice to defraud." No one has ever been able to figure out quite what that means, with the result that crippling, life-changing prosecutions can be brought whenever some transaction or practice seems fishy to at least one federal prosecutor. (The best book on this topic is Three Felonies a Day, by Harvey Silverglate. Anyone who can read that book and come away thinking that our federal criminal system is working properly has a stronger stomach than mine.)

One aspect of this issue is already being showcased in the FIFA case. Part of that case is based on the notorious theory of "honest services" fraud -- the idea that it can be a federal crime, punishable by up to 20 years' imprisonment, to fail to provide fully "honest services" to one's employer.

This theory has been ricocheting throughout the system for more than half a century. It's been enormously controversial, largely because it's so broad and far-reaching -- potentially covering, for example, every employee who tacks a few unrecorded minutes onto an authorized coffee break.

And there has been virtually no consensus as to whether the federal criminal statutes actually cover this kind of thing. For several decades most courts concluded that they did. In 1987, the Supreme Court effectively stated that they didn't. Congress tried to clarify the statutory language in 1988, but it wasn't until 2011 that the Court finally (sort of) settled the question of what types of "honest services" offenses were criminally punishable -- in doing so, drawing lines seemingly different than those proposed by Congress. Notably, the alleged conduct in the FIFA case goes back decades, so the "honest services" part of the prosecution will apparently be based in part on alleged conduct that took place back when it was anyone's guess as to what was really criminal.

The problems with such a system should be obvious. It's impossible for individuals to order their affairs to stay within the law when the relevant statutes are drawn so vaguely. Just as importantly, the breadth and vagueness of these laws give prosecutors immense discretionary power to prosecute pretty much anyone they feel like targeting. Back in 1940, then-Attorney General (and future Supreme Court Justice) Robert Jackson already saw the danger:

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

And prosecutors are well aware of the immense power they wield. A 2007 article in Slate describes a game played by federal prosecutors in the highly influential Southern District of New York, in which one would "name a random celebrity -- say, Mother Theresa or John Lennon," and the others would "figure out a plausible crime for which to indict him or her." Funny stuff -- as long as you don't end up in these prosecutors' crosshairs.

This troubling combination of vagueness and discretion shows up in a number of contexts. Silverglate's book, for example, describes criminal cases based on individual prosecutors' beliefs that certain business practices in various fields were improper -- despite the lack of any pre-existing rules or standards governing the practices, and in some cases despite confusion within government agencies themselves regarding their legality. (I've seen the same thing in my own practice. Several years ago, I represented a man who was criminally charged based on conduct that the head of the relevant government agency had stated, in writing, was legal.)

The FIFA case may end up focusing on alleged conduct that's clearly illegal, or it may center on more controversial, "creative" theories. Regardless, it's increasingly clear that prosecutors have essentially unbounded discretion in deciding whom to charge in a case like this, and extraordinarily broad legal weapons to use against their chosen targets -- a troubling combination for anyone concerned with the rule of law.