Judge (Oliver) Diaz says there’s a question as to whether Minor’s case even falls into the category of honest services fraud, noting the broad application and discretion it gives prosecutors:
“It’s interesting when you look at history. It was passed by congress very quickly in late 1980s after the Supreme Court of the United States had struck down a similar law. The problem is the new honest services statue that passed is a lot more vague than the previous law. Its application is not consistent across the country. It gives prosecutors unfettered discretion as to who should be prosecuted by law. You have folks who were put on notice who didn’t even violate the law and they’re sitting in jail having been prosecuted under an extremely vague law and I think Justice Scalia has made fairly clear about the honest services statute. He said in one opinion that it was overly vague and unconstitutional and his questions from the bench and oral arguments from the bench seem to confirm that.”
Ted Olson agrees the law is obscure:
“The open-ended and unclear language of the ‘Honest Services’ statute is
inconsistent with the fundamental principle that the public must be able to understand what a criminal law means. Mr. Minor will ask the Supreme Court to make clear that the vague language of the ‘Honest Services’ statute cannot be used to criminalize lawful campaign contributions.”
Diaz is thrilled Olson is taking on Minor’s appeal:
“Ted Olson is recognized widely as the greatest appellate attorney in the country. He has a great deal of experience and someone of his stature representing Minor is a sign that there are a great deal of people that believe there is something wrong with Mr. Minor’s conviction. It also shows that there is actually a great deal of unanimity about how really bad this honest services law is. You have people on the left and right who believe this law should be stricken and that’s the way the court is going.”
Even if Olson is able to win Paul Minor’s appeal, the tragedy in all of this is that Minor has lost almost four years of his life that he cannot get back. Therein lies the true injustice.