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Saturday, April 7, 2012

RICO the Supreme Court

By Josh Sager

The current US Supreme Court is among the most controversial in the history of the court –handing down several decisions, by a 5-4 partisan vote, that have drastically altered the course of our country. Unfortunately, while differences of opinion and interpretation of the constitution are inevitable, thus Justices will always disagree, several of our current Justices have engaged in corrupt actions. Justices Thomas and Scalia have, among other things, taken expensive gifts (Money, vacations, and material possessions) from groups appearing in from of their court; these groups have virtually always received rulings in their favor from the Justices whom they have given “gifts”. While the Supreme Court is not bound by the same rules that other Federal judges are (The Judicial Code of Ethics), this does not mean that their actions should be allowed to continue without legal consequences.

While it is very difficult to compel the resignation of a Supreme Court Justice and even harder to impeach them, I believe that criminal sanctions under the federal RICO act could be used to force corrupt Supreme Court Justices to resign their post - This should not be used due to partisan differences, but rather in response to an un-accountable Supreme Court Justice disregarding ethics and selling their vote.

While the use of the RICO act to prosecute corrupt judges, who take money for decisions, is not unprecedented, this would be the first time a judge as powerful as a Supreme Justice were targeted. In 2011, Pennsylvania judge Mark Ciavarella was convicted of racketeering for the infamous “Kids for Cash” scam, in which he took money from prisons for sentencing children to jail time.   

Title 18 of the US Code, also referred to as the “Racketeer Influenced and Corrupt Organizations Act” (RICO) is used to criminally prosecute those who have ordered, or are otherwise indirectly related to, certain criminal acts – organized crime groups and corrupt enterprises are the most common targets of this statute, but it has been used to prosecute many other types of corrupt organization.  Under the RICO act, an individual who is charged with certain crimes (Ex. money laundering, extortion, etc.), as a part of a criminal conspiracy, can not only have their assets frozen (or seized, if convicted), but can be liable for massive criminal and civil damages.

The first criteria to proving a RICO case against an individual is showing that they have committed at least two of thirty-five federal crimes in a period of no longer than ten years. Among the federal laws that compose RICO cases, there are several which could potentially be applied to corrupt members of the Supreme Court: honest service fraud, tax non-compliance, and obstruction of justice

Honest service fraud (18 USC § 1346) is fraud which is intended to deprive a citizen of intangible goods, such as the honest services of the law. Somebody who is beholden to the public is guilty of honest service fraud if they knowingly neglect their constituents’ interests in favor of the interests of a third party which is paying the public official. This statute is most commonly used to prosecute corrupt politicians, who deprive their constituents of the “honest services” of their elected officials by selling their votes. In previous situations, it has been upheld that a judge who accepts a bribe for consideration in a case, is guilty of honest service fraud – While the Supreme Court Justices are not bound by the judicial code of ethics for other federal judges, they are not immune to prosecution for bribery. If it can be proven that a Justice has taken money in exchange for a ruling, they are legally liable.

Justice Thomas has openly accepted material gifts from groups/individuals that have pending cases (or have filed amicus briefs) in the Supreme Court. Justices Scalia, Alito and Thomas have accepted paid vacations and speaking fees from conservative groups (paid vacations can be considered a bribe, as they have material value) which have presented cases in front of the Supreme Court – Arguably the largest case where this situation is apparent is that of Thomas and Scalia having association with the group Citizen’s United. While it is often difficult to prove the connection between the bribe and the corrupt decision, it is not impossible and, in my opinion, is a valid charge against Justices Thomas and Scalia.

Tax non-compliance (more commonly known as tax evasion) is the intentional avoiding of taxes owed to the state or federal government through illegal means. If income is not reported, undervalued or otherwise hidden, then the taxes paid to the government are lower than they should be, and the tax payer is guilty of tax evasion. As with honest service fraud, both politicians and judges have been found liable for tax evasion when they accept bribes. Bribes are by definition illegal, thus taxes are rarely paid on them; the evasion of taxes on profit from illegal activities, whether drugs or bribery, has been one of the most common charges levied against corrupt politicians and organized crime figures. Those on the Supreme Court receive a salary, which they pay taxes on, but, as detailed above, some Justices also receive “gifts” that can be considered undeclared income. Even if the “gifts” are not legally considered bribes, unless they are reported for taxation (and it has been shown that many of these “gifts” have not been reported until years after), this constitutes tax evasion.

Obstruction of justice is a charge levied against those who attempt to prevent legal authorities from doing their job - this obstruction can manifest in the form of bribery, official corruption, threatening, or even murder. If a judge rules in favor of a party, in an attempt to prevent the law from being applied and in exchange for a bribe, this is considered obstruction of justice through official malfeasance. Situations where this would apply to a Supreme Court Justice would likely be in cases where civil liability or campaign finance rules were restricted. For example, if a Justice is found to have sold their vote during the Citizen’s United V. FCC, they would be guilty of “obstruction of justice” because they would have prevented a regulatory authority from performing its legal duty. Out of all possible, applicable, charges to sustain a RICO act indictment of a Supreme Court Justice, this is likely the hardest to prove because intent to obstruct must be proven; unlike with accepting a bribe or evading taxes, where the act itself proves the crime, the charge of obstruction of justice must prove intent to subvert the law by the Justice, not simply the fact that the law was subverted.

Once a federal prosecutor constructs a RICO case against a Supreme Court Justice by proving that the Justice has committed at least two of the requisite crimes, a federal grand jury can approve not only an indictment of the Justice, but a freeze on their personal funds. The products of an illegal enterprise are frozen even before conviction, thus pressure could be applied to the Justice even before conviction. As the indicted Justice is accused of official corruption, all funds and property gained through these actions (Salary and Bribes) are liable to freezing until acquittal, or seizure if convicted.

While the Justice charged under the RICO act cannot be forced to resign their post, the freezing of their assets would impoverish them and would likely lead to a resignation if it continued for a significant period; the corrupt justices would essentially be forced to choose between their position on the court and their material possessions (as these Justices have already sacrificed their integrity for money, it is unlikely that they would stay on the court in the face of losing all of their property).

If convicted, the corrupt Justice would suffer immense legal ramifications. They would be liable for huge civil damages, as well as twenty years per count of racketeering activity (in addition to the sentences of the requisite crimes) and would forfeit most of their material possessions. The convicted Justice would not be forced to relinquish their position, but would forfeit all income and have all future “gifts” seized as profits of an illegal act – it is also likely that this Justice would be impeached, if only to mitigate the scandal and preserve the integrity of the Supreme Court.

Ultimately, I believe it unlikely that a Supreme Court Justice would actually be charged with the RICO Act, if only due to their immense power, but the fact remains that it is an option with several of the current Supreme Justices. I do not support the specious use of this legal tactic, regardless of whether or not I agree with the Justice in question, and would only support this tactic in the case of a legitimately corrupt Justice. Unfortunately for our country, I believe Supreme Court Justices Thomas and Scalia to be guilty of all three above-mentioned charges, thus liable under the RICO Act. In the face of a corrupt Supreme Court, we must use all legal methods to return the court to a fair and just institution, and I believe the use of the RICO statute to be the most expeditious way to achieve this goal.   

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