It has been, as we all know, a celebrity news week to make Ahmadinejad cheer. First, South Carolina Governor Mark Sanford returned from a mysterious disappearance to confess, on Wednesday, to an extramarital affair with a woman in Argentina. Then, a day later, Michael Jackson died of sudden cardiac arrest.
As a lawyer currently researching the exceptional breadth of the federal wire fraud law, my first thought upon watching Sanford's halting confession this Wednesday was: this man could be indicted for leading his staff to incorrectly believe that he was hiking the Appalachian trail this past week. Of course, I don't know whether Sanford did any such thing. If there is enough evidence to convince a grand jury that he might have, though, he could face charges under a federal law that criminalizes "any scheme or artifice" involving any phone or email communication that is designed "to deprive another of the intangible right to honest services," regardless of whether any victim was concretely harmed and regardless of whether any benefit was inappropriately gained by the deception. The so-called "honest services" extension of the federal wire fraud law was explicitly intended to police the fiduciary relationship between state and local pols and their constituents, though it is now frequently invoked against private employees as well.
Sanford seemed very careful, during his press conference, not to admit that he may have intentionally misled his staff so that they might pass the "Appalachian trail" story along to the voting public, which leads me to believe that he may be getting legal advice. If you think that lying to voters for political advantage is such ubiquitous behavior that it can't possibly be illegal, you are only half right. Not only does the wire fraud law probably cover such conduct, but it prescribes a prison sentence of up to 20 years - ironically, the same maximum sentence faced by Jackson when he was indicted (though later acquitted) in 2003 on 14 counts of child molestation, provision of alcohol to minors, and similar offenses.
This comparison raises troubling questions about both the scope of federal wire fraud law and about the proportionality of sentencing to the blameworthiness of a crime. Surely, the crimes of which Michael Jackson was accused are far more reprehensible than a lie offered to staff over the telephone by a desperate pol. But as Justice Scalia has warned, "this expansive phrase [in the wire fraud law] invites abuse by headline-seeking prosecutors in pursuit of local officials ... who engage in any manner of unappealing or ethically questionable conduct." Let's hope that that federal prosecutors exercise better sense in the case of Mark Sanford.