The issues that DeLaughter raises in his motion to dismiss the mail fraud counts include: That there was nothing of value given to Judge DeLaughter; that mere ex parte contact and secrecy aren’t enough; and he makes much of statements in the indictment that imply the Government isn’t saying that the rulings were wrong. I talk about each of these in the linked post above.
Judge DeLaughter’s motion to dismiss the mail fraud counts asserts that “courts have required honest services prosecutions of state and local officials to proceed under either or both of two theories: ‘(1) bribery, where a public official was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain.’” He then proceeds to argue that
there must at least be “value” – and mere “consideration” for a federal judgeship, something to which Judge DeLaughter would have been entitled in any event, has none, as Cleveland and Griffin suggest. Put differently, because any qualified lawyer can obtain “consideration” for a federal judgeship for free, no rational lawyer would pay money for (and thereby assign “value” to) such “consideration.” …
An honest services bribery charge “may not be founded on a mere intent to curry favor. . .
. [T]here is a critical difference between bribery and generalized gifts provided in an attempt to
So, integral to this argument is that a call from a Senator that one is being considered for the federal bench is literally without value, worthless.