Honest Services Statute at Heart of Bruno Trial

By Karen DeWitt

Albany, New York – The corruption trial of former Senate Majority Leader Joe Bruno gets underway in a federal courthouse in Albany Monday. There is some dispute, though, about the statute that Bruno has been charged under, known as the "theft of honest services" clause.

The former Senate Majority Leader is accused of stealing more than $3 million dollars over a period of nearly a decade and a half, through a scheme in which the Senator secretly held business interests in several companies that benefited from the deals.

The indictment alleges that Bruno hid some of those payments by receiving them through a sham consulting business- that federal prosecutors say was actually a vehicle for kickbacks. In exchange, they charge, the former Senate Leader ensured that the groups, including a number of labor unions, were treated favorably in legislation approved by the Senate.

The indictment charges that Bruno also had undisclosed interests in a horse racing venture and a software company that was awarded state contracts.

Bruno, who retired as Senate Leader in June of 2008, is not actually charged with the crimes of bribery or extortion. Instead, the indictment hinges on a somewhat nebulous anti-corruption statute known as the "theft of honest services law" that in recent decades has increasingly been applied to the actions of politicians.

Bruno's attorney was admonished by the judge in the case when he called the statute "squishy", but many experts agree.

Dan Moriarty is a professor at Albany Law School, where he taught white-collar crime law for twenty years. He says the statute, which also mentions the "intangible rights" of the citizens to "honest services" by politicians, is deliberately vague.

"The people that commit fraud are smart," said Moriarty, who says if the potential white collar criminals are given a clear definition of what's forbidden, then "it's virtually certain they're going to come up with a way that gets around the letter but not the spirit" of the law.

"They're going to find some way of avoiding the law and yet still run off with your money," Moriarty said.

But the ambiguous nature of the law has caused it's own problems, and can make it harder to prove that someone has violated the statute.

Professor Moriarty says the federal statute, which was renewed by Congress in the late 1980's, also brings up a larger constitutional issue, that of state's rights. The law essentially says that the federal government does not believe that the state, in this case New York, is adequately policing it's ethics violations, and so the feds must step in.

"The Congress thinks, essentially, that they ought to get into the business of superintending state and local political honesty," said Moriarty. "Joe Bruno and company is going to be arguing, you didn't give me fair notice, what the hell does honest services mean'"?

Moriarty says for politicians like Bruno, the stakes are very high.

"You're not talking about making somebody pay back some money," said Moriarty. "You're talking about sending someone to jail for a real length of time."

The 79 year old Bruno faces up to 20 years in prison if convicted on all of the charges.

Prosecution under the "theft of honest services" law has had a successful track record until recently ,when some appeals courts have overturned convictions. One of the best known examples of that is the case of former Alaska Senator Ted Stevens, who was convicted under the statute but whose conviction was later overturned by a federal appeals court.

Moriarty says the trial, which begins Monday, could be a test case for the "theft of honest services" statute, and go all the way to the US Supreme Court.

Former Senate Leader Bruno, who was indicted following a three year federal investigation into all aspects of his personal finances, maintains his innocence, and calls the probe that led to the charges a "fishing expedition".