Commemoration of the Bill of Rights –
Articles and Essays
by Mr. Joseph diGenova
would like to spend my time discussing and bringing to life the McNally1
case. Specifically, I would like to demonstrate why it was
significant and why what it wrought was significant. I was frequently asked
when I was United States Attorney for the District of Columbia what it was
like to hold that job, and I opined at the time that it was a little bit
like being chosen captain of the United States Olympic Javelin Team and
electing to receive.
on June 24, 1987, along with 92 other United States Attorneys, I awoke not
knowing that we had been elected captain of the United States Olympic
Javelin Team and had elected to receive, and we thought it was safe to go
back into the water that day. Just when we thought it was safe to go back
into the water, there appeared a large fin swimming around in our environs
and it was attached to a shark whose jaws belonged to Charles McNally. In a
seven-to-two decision, the United States Supreme Court ruled that the mail
fraud statute did not apply to actions of a former Kentucky state official
and a private individual in requiring that an insurance agent who had been
selected to provide policies for the state and had been required to share
the premiums from that work with an insurance agency in which all of the
defendants had an interest.
reason was, according to the Supreme Court, that the mail fraud statute
does not prohibit schemes to defraud the public of their intangible rights
to honest and impartial government.
those of us who had been using the mail fraud statutes for many years had
repeatedly heard arguments based on the theory of prosecuting people for
depriving citizens of their intangible right to honest and impartial government,
repeatedly rejected by the federal Circuit Courts, and we had seen the
Supreme Court deny certiorari on that very question in the case of United
States v. Mandell.2 Some of us were a little confused because
we couldn't find this particular interest spelled out in the statute.
legislative history was abundantly clear that it had been designed to
protect property rights. Indeed, in 1872, during the debate on the
recodification, Representative Farnsworth, the sponsor of that
recodification, in an apparent reference to the antifraud provision, said
that the measures were needed to "prevent frauds which are mostly
gotten up in the large cities by thieves, forgers, and rapscallions,
generally for the purpose of deceiving and fleecing the innocent people in
the country." Delightful congressional debate in those days. If we
could only reconstruct it today.
McNally case sent shock waves, as you might imagine, through federal
prosecutors' offices all over the United States, and rightly so, because
they had been relying on it quite properly, ethically, and wisely in the
pursuit of official corruption, both state and federal.
interesting thing about the individuals involved in the McNally case
is that they were all private individuals. One of them had been the former
Chairman of the Kentucky Democratic Party. Another had been the former
Secretary of Public Protection and Regulation in Kentucky. And the other was
a private citizen.
they did was not a crime under Kentucky law. That is a very important
point. What they did was construed to be a crime under federal law under
the mail fraud statute and was properly so construed by the federal
prosecutors in that case because they were following not only departmental
policy, but also a long line of federal circuit cases from all over the
country which said that this intangible right to honest and impartial
government, was covered by the literal language of the mail fraud statute.
Well, the Supreme Court
said it wasn't.
is a very short, but fascinating case. I would like to read to you one
passage, which really then started the debate within the Department of
Justice and the legal community and Congress about what should be done to
"fix" McNally, what should be done by way of a governmental
response from the Congress to put back into federal law an enforcement
mechanism to cover that kind of deprivation of an intangible right. Mr.
Justice White, speaking for the Court, said,
the Court said in a mail fraud case years ago, there are no constructive
offenses. Furthermore, before one can be punished, it must be shown that the
case is plainly within the statute. Rather than construe the statute in a
manner that leaves its outer boundaries ambiguous and involves the federal
government in setting standards of disclosure and good government for local
and state officials, we read the mail fraud statute as limited in scope to
the protection of property rights. If Congress desires to go further, it
must speak more clearly than it has.3
that began the debate as to what should be told to Congress by the Executive
Branch. As Judge Buckley indicated in his introduction, there was an
intense, interesting, and fascinating debate within the Department of
Justice as to just what that response should be.
There were those who felt very strongly that because the
issues involved were state and local, not whether or not you could pursue
federal corruption by federal officials, few tools were available to
pursue local and state officials who
were violating the public trust. There was, of course, no
doubt that people who violate the public trust and violate criminal laws
simultaneously should be the subject of some concern. The question was how
that should be done and by whom.
think it is a tribute to those who are concerned about the significance of
issues like what our Constitution means, not just in the abstract, but in
our daily lives as lawyers and citizens, that the debate which occurred at
the Department was a wholesome and, I think, from the broken glass and
windows and various furniture which I saw strewn about the hallways on
occasions, a vigorous one. I think both sides had an opportunity to have
their cases heard.
was deep concern about the use of various federal underpinnings for
jurisdiction to be used in fashioning a new federal statute. The arguments
were, I think, fascinating in the sense that here we were in 1987 discussing
an issue of deep concern to the American people: public corruption, a
subject with which I was not unfamiliar during my term as United States
Attorney in the nation's capital. And it involved both local and federal
corruption during my tenure.
I must say that I was transfixed by the argument, not because I was involved
in the actual debate, which I was not—I was one of those ninety-three
United States Attorneys sitting on the sidelines wondering what, if anything,
was going to be given to me in its place as a result of this battle—but
because of its effect on our work. I must tell you that I was initially concerned
about the McNally decision. I was deeply concerned that federal prosecutors
might be denied a very valuable tool in the pursuit of federal, state, and
went back and read McNally very carefully. I saw that the Court was
making some very fine distinctions about the kinds of instructions that had
been given to the jury because McNally is not only a statutory
interpretation case; it is a case about the kinds of instructions the judge
should give in cases tike this.
the Court seemed to be hinting in some places that had different
instructions been given, a different result might have been obtained. And,
indeed, in subsequent cases from various circuits, the courts are trying
to make distinctions by reading into instructions given that differ from the
McNally instructions the fact that certain property rights were
caught up in the crimes which were charged. That battle is now underway in
circuits all over this country, with courts going both ways.
any rate, suffice it to say that within the Department, there were very
strong views about whether or not the commerce clause should be used to try
and grapple with this right to honest and impartial government.
one argument was made which I found fascinating, and it was to grab the
guarantee clause4 of the Constitution and use it as the basis for
creating a federal interest and nexus to deal solely with local and state
corruption, which would not have otherwise been "grabbable."
number of individuals made the argument that state attorneys general and
others have problems in prosecuting these cases, not just political
problems, but real legal problems. In many instances, prosecutors'
jurisdictions end at county lines. Their subpoenas are worthless beyond
those borders. Most of them do not have grand juries. Most of them do not
have the ability to compel people to testify before those grand juries
without automatically giving them
there were structural problems, it was being argued; not constitutional
problems, but simply structural problems. There was a need here, a need to
be filled. In addition, some states don't have grand juries, so that one of
the most important tools for investigating corruption and schemes and
artifices to defraud couldn't be used.
argument went on that, indeed, in some instances, there not only is a lack
of legal will, but there is a lack of political will to pursue such cases in
the state, local, or county context because the subjects of the
investigation are usually the individuals with whom party fundraising
activities will be occurring within a matter of days. So the fear was, among
one group in the Department, that states and localities would, in fact, be
incapacitated because of their own
response to that was not that states were entitled to corrupt government,
if that is what they wanted, but that states were entitled to structure
their legal systems as they wished, and if those impediments existed in the
State of Kentucky or anywhere else, that was a problem for the people of the
State of Kentucky or any other state to solve through the ballot box, by either:
(a) throwing the rascals out; or (b) restructuring their legal system.
was an interesting argument. It is an argument which has great merit in the
sense of viewing the relationship between the central government and a state.
argument on the other side was that the federal government had an interest
under the guarantee clause in seeing that there was honest, impartial
government at the state and local level, and that the federal government
needed to manifest that concern because of the growing public concern about
corruption through a federal statute which would bring back into the federal
criminal code protection of that intangible right through some amendments.
occurred, and the Department submitted to Congress in May of 1988 a statute
which does, in fact, criminalize, or I should say recriminalize, the kind of
conduct which was originally thought to be prohibited by the intangible
rights theory of prosecution under the mail fraud statute.5
will simply read to you the proposed amendment to Chapter 11 of Title 18, a
new Section 225 entitled, "Public Corruption."
in a circumstance described, endeavors, by any scheme or artifice, corruptly
to deprive or to defraud the inhabitants of a state or political subdivision
of a state of the honest services of an official or employee of such state
or subdivision shall be fined under the statute or imprisoned for not more
than 10 years. . . .6
decision was made on the part of the Department. The ninety-three United
States Attorneys had let their views be known. They were very concerned that
the absence of the intangible rights theory from the mail fraud statute
would take something away from them that they needed very, very badly. The
Criminal Division took the position that the statute was needed. The Office
of Legal Policy and Legal Counsel, however, took the different view that the
statute, even as proposed, really went too far in usurping what certain
individuals viewed to be the legitimate prerogatives of states. It viewed
the proposal as an unwarranted expansion of the federal role into this area.
has not enacted that statute. The debate continues on how to "fix"
McNally. The issue will remain a hot one because the issue of corruption
is a matter, necessarily and appropriately, of deep concern to not only
public officials, but private citizens who do not want their tax money misspent.
I submit to you, as a person who has not been a scholar interested in the
notions of federalism until recently, that the issue is an important one,
that how we resolve this question in terms of the kind of federal
legislation we pass on the issue, if any, will tell us something about the
way we will proceed in other areas.
for one, having dealt with the area of public corruption, feel very strongly
that prosecutors, Assistant United States Attorneys, and United States
Attorneys ought to have at their disposal appropriate tools to pursue these
kinds of crimes. I have not made up my own mind as to whether or not this
particular statute is the way to do it. I will probably get there by the
time the vote is cast. That will be irrelevant to everyone in this room
except me, of course. But the truth is: it is an interesting and important
conclusion, in its aftermath, McNally demonstrates very strongly that
the issue of the relationship between the United States government and the
several states on the issue of how to deal with local and state conduct is
alive and well and in need of our attention if it is to receive proper
483 U.S. 350 (1987).
2. 525 F.2d 671 (7th Cir. 1975), cert, denied, 423 U.S. 1049 (1976).
3. 438 U.S. at 360.
4. U.S. const. art. IV, § 4.
The guarantee clause requires that the United States "guarantee to
every state a republican form of government."
5. The proposed "Anti-Corruption Act" was introduced in the Senate
on September 15, 1988. See S. 2793,
100th Cong., 2d Sess., 134 cong. rec.