With college football heating up, we’re all thinking the same thing. When will President Obama eliminate some teams from the Big Ten so that Ohio State can win the national championship again? After all, President Obama claimed to be a huge Ohio State supporter (albeit only after it won the title). What if he decides that another team, maybe Michigan State, poses a threat to the Buckeyes’ repeat performance and therefore needs to find another conference as its home? Our fraud laws are so vague and far-reaching that they might give the Department of Justice (DOJ) an opportunity to eliminate some of Ohio State’s competition.
Stetson University law professor Ellen S. Podgor wrote that “fraud” is not a crime in itself; rather, it is a “concept” that judges, prosecutors, and legislators can throw into “the core of a variety of criminal statutes.” As the criminal laws pile up, reaching ever more conduct, the DOJ could rely on fraud laws to advance executive “priorities.”
In fact, anti-fraud measures are now so vague that “a salaried employee’s phoning in sick to go to a ball game” could be a federal offense, according to Justice Antonin Scalia in Sorich v. United States. We know that the DOJ can attack political parties or businesses that the president doesn’t like. So why not go after a sports team, too?
Sportswriters gave the “Big Ten” athletic conference that name in 1917 when there were (not surprisingly) ten teams, and the conference incorporated the label in 1987. But today there are fourteen teams in the conference. So the Big Ten purports to be a ten-team conference but sinisterly harbors fourteen teams. Federal prosecutors could pick their favorite flavor of fraud, and the four teams who would challenge Ohio State for the title, and argue that the Big Ten needs to pay for its charade.
The DOJ could argue that the wire fraud statute makes it a crime for the “Big Ten” to use radio, television, or the Internet to spread its vicious lie that there are only ten schools in the conference, thereby defrauding audiences with false representations. (And maybe they aren’t so big after all?) Of course, the logical way to stop this elaborate ruse would be to whittle away a few unwanted teams.
Prosecutors wouldn’t have to prove that fans lost money by paying for tickets to a game or, because time is money, by watching a game on TV. All that the DOJ would need to prove is that the Big Ten deprived sports fans of the “honest and faithful” services that a football conference must provide the public. The Justice Department has used such theories to prosecute numerous other parties for conduct that the government deemed “shady,” and that theory might work here, too. Seriously, what could be more deceitful than labeling “fourteen” as “ten”? If the Big Ten can get away with this shenanigan, the next thing we’ll see is a baker calling “thirteen” a “baker’s dozen.”
This scenario is (we hope) purely tongue in cheek, but it does make a legitimate point. Vague criminal laws are bad enough on their own because no one knows what conduct is illegal; that’s left to an unelected prosecutor who may be trying to make a name and career for himself. People should not be at risk that the government will not look at their conduct in the same way that they do. Stretching criminal laws, like the wire fraud statute, to reach conduct that no reasonable person would deem “fraud” is one of the ways that the government can put the public at risk.
The “honest and faithful” services provision was written to deal with local corruption. But there are several examples of prosecutors stretching a statute beyond the purposes Congress intended. As legal scholar Henry Hart wrote, individuals should not have to rely “on the discretion of a prosecutor rather than the clarity of the law” to safeguard their freedom. Consider the prosecutor’s overextension of a vague law in Bond v. United States: a woman discovered that her husband and neighbor were having an affair, and in attempting to injure her husband’s paramour, she spread caustic chemicals on her doorknob and mailbox. This “caus[ed] only a minor thumb burn readily treated by rinsing with water.” But she was prosecuted under a counter-terrorism treaty that bans the use of chemical weapons. The Court decisively ruled, in reliance on the Tenth Amendment and common sense, that Bond had not used a “chemical weapon” against her neighbor.
And consider the now notorious case of Yates v. United States. There, the government argued that a fisherman who threw overboard some undersized fish violated the Sarbanes-Oxley Act of 2002, a massive overhaul of the federal laws requiring corporations to accurately report on their financial health. Among other things, the act prohibits a corporation or accounting firm from destroying a “tangible object” for purposes of preventing the discovery of a crime.
The Supreme Court rejected prosecutors’ argument that a fish is the kind of “tangible object” Congress had in mind when writing the Sarbanes-Oxley Act. This shielded citizens from a prosecutor’s reading of a statute “that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil.”
The Supreme Court twice has slapped down the federal government’s efforts to expand the federal fraud laws, in McNally and Skilling. To prevent the case of United States v. The “Big Ten,” and as Heritage scholars have said on prior occasions, Congress must draft criminal laws with precision, and courts should never rely on the proposition that prosecutorial discretion is trustworthy when interpreting a statute.