What’s the Charge?

Based upon recent comments to this blog, there appears to be a swelling interest to have the County Prosecutor’s Office investigate Aberdeen Township. The frustration is certainly understandable. Even if an opposition party swept next year’s township elections, former Township Attorney Norman Kauff would still control the council majority, most likely through Councilman Drapkin. Absent the opportunity to change an arguably corrupt government through democratic means, some people would like to force change by indicting council members.

If crimes are being committed, the perpetrators should be charged regardless of the political impact. Though I have always maintained there is no evidence of criminal action, the truth is, technically, there are sufficient grounds to suggest that some people could be charged with U.S.C. § 1346, a "scheme or artifice to deprive another of the intangible right to honest services." Yet, I maintain this statute is unconstitutionally vague and should never be used.

First, let’s be clear what the issues are –

• Pay to play on an obscene level
• Enabling CME Associates, the township’s largest political contributor, to fleece the residents through no-bid contracts and unnecessary code inspections
• Failure to add a councilman’s land to the tax rolls
• Taxing a developer’s substantially completed residential properties as vacant land
• Inflating pension rolls
• Unaccounted campaign funds
• Using campaign funds for personal benefit
• Issuing bonds for a purpose contrary to the stated intent of the bond
• Granting outsized eminent domain compensation to politically connected individuals
• Unaccounted developer fees (sorry – this will be detailed in a future post)

Yes, it’s quite a list. Congress specifically enacted U.S.C. § 1346 in 1988 to allow prosecutors to use the Mail and Wire Fraud statutes against corrupt politicians. Prosecutors have used the statute against Jack Abramoff and his clients (2006), officers of the San Diego Pension Retirement System who inflated their benefits by underfunding the system (2002), and the City Treasurer of Philadelphia who conditioned city business upon political contributions (2005). (For a detailed review of U.S.C. § 1346, please read "Honest Services" Fraud – Strong Medicine for "Pay to Play".)

Given the strong likelihood that we’ve only revealed a fraction of the township’s underbelly, we have certainly been deprived of our “intangible right to honest services”. I, too, have heard the rumors of shakedowns, inside deals, violations of the sunshine law, and even an attempt to influence Matawan’s recent mayoral election.

Still, I fear prosecutors far more than corrupt officials. We’ve all witnessed the damage crusading prosecutors can do, from Arthur Andersen (a company destroyed despite having the conviction overturned) to Martha Stewart (convicted of hiding a crime she was never accused of committing) to the bullying tactics of Eliot Spitzer against Wall Street corporations and financiers. (Does anybody remember the guy who ran against Spitzer for New York Governor? He couldn’t raise campaign cash on Wall Street because potential contributors feared retaliation from Spitzer.)

Prosecutors have the power to destroy life and liberty. Do we really want them determining whether someone has been deprived of the “intangible right to honest services”? Does anybody even know what that means? Who's to judge whether a person has acted impartially or not? How can we redraw the line between legal and illegal on a case-by-case basis?

The United States Constitution (Article 1, Section 9) states “No Bill of Attainder or ex post facto law shall be passed”. We have the constitutional right to know whether an action may be criminal before we act. How could any politician be secure from a vindictive or self-serving prosecutor when every budget, zoning, and contractual decision involves picking winners and losers?

I believe crimes have been committed. I believe honest people have witnessed these crimes but have been afraid to speak. Let’s be careful to investigate actual malfeasance and not use the power of the state to settle vendettas. I’m prepared to wait for change through the democratic process of elections. >>> Read more!