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Change That's More Than Skin Deep

The more I hear about Barack Obama and his slogan of "Change you can believe in," the more I realize that it's being used by the wrong candidate.

John McCain's most defining feature has to be his "maverick" label. He has a decades-long history of turning away from his party, of reaching across the aisle, of -- in general -- pissing off the Republican base to achieve his goals and maintain his principles. I happen to think that that is often a mistake, as he picks the damnedest wrong-headed positions to defy his party, but it's hard to call him a "typical Republican" or "Bush III" or "party hack."

Barack Obama, though... he really doesn't bring much "change" to the party.

One of the more disgusting scandals of the Bill Clinton administration (and there were a lot to choose from) was the last-minute pardon of fugitive financier Marc Rich. It was one of the last acts of President Clinton before he left office, and not only did the pardoning process completely bypass the standard processes, but -- by an astonishing coincidence -- corresponded with Rich's ex-wife making some very, very hefty donations to Clinton's presidential library. (It also corresponded with several visits to the White House by the quite attractive -- and zaftig -- ex-wife in question.)

Well, one of the key figures in getting Rich his pardon was Eric Holder, who was the #2 man in the Justice Department under Attorney General Janet Reno. It was Holder who directed that the normal pardon process (including consulting with -- or, at least, notifying the officials who were directly involved with the case against the pardon-seeker, or that the subject of the pardon make the request themselves, or that the proposed pardon not mess up any current cases) be bypassed and Rich get his pardon.

Rich, of course, went on to take his second chance to get heavily involved in the United Nations' "Oil For Food" program for Iraq, which Saddam Hussein used to funnel literally billions of dollars into bribes all around the world to get the sanctions against his regime lifted -- a goal that was most likely barely foiled by President Bush's decision to invade Iraq.

I wonder if Mr. Holder lists his involvement in the Rich affair (pun partly intended) on his resume?

Well, Mr. Holder is now one of the troika that is advising Barack Obama on who should be his vice-presidential candidate. Alongside a fellow named Jim Johnson. Mr. Johnson is a bit more qualified to do this, as he helped pick two other Democratic vice-presidential nominees -- Geraldine Ferrraro and John Edwards. Maybe they think the third time is the charm or something.

Several of Obama's top foreign policy advisors is Zbigniew Brzezinski, who served as National Security Advisor for Jimmy Carter -- where he helped shape the foreign policy that we're still paying the price for, in many ways, today.

Obama is the junior senator from Illinois, and he worked his way up through the Chicago political machine. Now, I won't say that Chicago's Democratic apparatus is the most corrupt in the nation (I strongly suspect Louisiana could give them a run for their money), but it's legendary for its corruption. And Obama was part and parcel of all that.

Obama worked closely with convicted political moneyman and fixer Tony Rezko, but insists he never saw any signs of the man's corruption.

And the Chicago apparatus has done yeoman's work in helping Obama. In his first race for the state legislature, an astonishing thing happened: every single one of Obama's rivals for the Democratic nomination was disqualified after enough of their signatures on petitions discarded until Obama was the only one left.

Later, when Obama was running for the state US Senate nomination, he was running against a guy named Blair Hull. Obama was way behind until his staffers put enough pressure on reporters to dig into Hull's sealed divorce records. They eventually got them opened and found a never-proven allegation of domestic violence by Hull against his then-wife, and that was it. Hull was history, Obama was the Democrats' nominee. (corrected -- thanks, david)

Then, when he was running for the US Senate, he was running against a Republican named Jack Ryan (no connection to Tom Clancy's superhero). Ryan was also divorced (from actress Jeri Ryan), and once again the press went digging and unsealed Ryan's divorce and child-custody records. There was nothing as repulsive as violence, but there were some deliciously lurid allegations of a sexual nature that came to light -- and Ryan quit the race, leaving Obama virtually unchallenged in the race.

"The new politics of hope and change?" Sounds pretty damned old-school to me.

Another bit of old-school politics are the radical bomb-throwers of the 60's. One of the most prominent of those groups were the Weather Underground. Two absolutely unrepentant veterans of that group are Bill Ayers and his wife, Bernardine Dohrn, are among Obama's staunchest supporters and long-time friends and allies.

Well, that's the past. What about the future?

Seems to me like most of Obama's policies are reruns of Carter-era policies -- and the most disastrous ones. Make nice with the nutjobs that run Iran. Punish the oil companies to bring down the price of energy, in the lines of the ever-popular "the beatings will continue until morale improves" signs. Tax the rich and deprive them of their incentives to better themselves and add to the growing economy. And all done with an air of idealism that trends towards sanctimoniousness.

I first started becoming politically aware during the Carter administration. I have some pretty vivid memories of that time. And I really, really, really don't want to go through those again -- mainly because now I'm old enough to have to face it directly, and not through the buffers of parents and elementary school.

I find myself wondering how things would be different if Barack Obama was Barry O'Brien, a charming, gifted public speaker (but not off the cuff) who came up through the Chicago political machine and had no real track record. Would Senator O'Brien have been taken seriously as a presidential contender, let alone the nominee?

I dunno. We'll never know. But I think it's an interesting question.

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Comments (15)

Just a minor point - I beli... (Below threshold)
david:

Just a minor point - I believe Blair Hull was Obama's opponent in the Democrat primary to run for the US Senate, not the IL state senate.

Brzezinski is an Obama supp... (Below threshold)
brent:

Brzezinski is an Obama supporter not an advisor, pretty big difference.

One word for BKO-crook... (Below threshold)
jhow66:

One word for BKO-crook

Correction-"BHO".... (Below threshold)
jhow66:

Correction-"BHO".

Obama will shortly be indic... (Below threshold)
John Ryskamp:

bm wll shrtl b ndctd ndr 18 SC 1346, whch s th sm prvsn ndr whch Rzk ws cnvctd.

Thr wll b MN cnts n bm's ndctmnt, mr thn thr wr n Rzk's. Ths wll gv dtls bt n f th ndctmnts, cncrnng th brd lgsltn whch bm spnsrd s prt f crmnl ntrprs. Bth Rzk nd bm r mmbrs f th Srn Mf, whch trds--crprtl--ndr th nm Gnrl Mdtrrnn nd s hdd b Ndhmch.

dn't thnk nd t dd tht f bm s lctd, th Srn mf wll b rnnng th ntd Stts Gvrnmnt. Ptrck Ftzgrld, hrr p.

Blw s dscssn f th brd lgsltn b vln Prngl, wh pblshd vr dtld srs n bm's crms t pdnws.cm. Ths rtcls hv bn ctd rnd th wrld.

Fllwng hr dscssn s lnk t dscssn, ls rprdcd, f 18 SC 1346, whch, gn s th sctn ndr whch bm wll b prsctd.

Frst, vln's dscssn:


Th vdnc prsntd n "Tn Rzk's] trl fcsd n hs nflnc vr ffcls n gttng mmbrs ppntd t th Brds. Prsctrs dd nt dscss hw th lgsltn gt pssd tht nbld th Plnnng Brd t b st p n w tht llwd fr th ppntmnt f mmbrs t rg th vts t bgn wth. Tht prt f th schm wll lkl b dtld n ftr ndctmnts, prbbl strtng wth Blgjvch. Blgjvch sgnd th llns Hlth Fclts Plnnng ct wth n ffctv dt f Jn 27, 2003. Hwvr, bfr h cld sgn th ct, bll hd t b pssd b th llns Hs nd Snt. s dscssd fll n Crtn Tm Prt , bm ws th nsd g n th snt wh pshd thrgh th lgsltn tht rsltd n th ct. bm ws ppntd chrmn f th Snt Hlth nd Hmn Srvcs Cmmtt. Th mnt th bll ws ntrdcd, t ws rfrrd t hs cmmtt fr rvw. Th spnsrs f th bll ls srvd n ths cmmtt wth bm. Wthn mnth, Chrmn bm snt wrd t th fll snt tht th lgsltn shld b pssd. n M 31, 2003, Snt Bll 1332 pssd nd spcfd tht th "Brd shll b ppntd b th Gvrnr, wth th dvc nd cnsnt f th Snt." Th lgsltn rdcd th nmbr f mmbrs frm 15 t 9, pvng th w fr th ppntmnt f fv-blc mjrt t rg th vts. Th crrpt mmbrs ppntd ncldd thr dctrs wh cntrbtd t bm. Mchl Mlk gv bm $10,000 n Jn 30, 2003 nd dntd $25,000 t Blgjvch n Jl 25, 2003. Mlk ls gv bm nthr $500 n Sptmbr 2003. Frtn Mssd dntd $25,000 t Blgjvch n Jl 25, 2003, nd gv ttl f $2,000 t bm n dffrnt dts. ftr h ws ppntd, Dr md lmnsr cntrbtd ttl f $3,000 t bm. lmnsr dd nt gv mn t Blgjvch. Whn th frst p-t-pl schm ws pt n pl, nd th pplctn fr pprvl f nw hsptl ws sbmttd, th Dprtmnt f Hmn Srvcs, lng wth fr thr llns gncs, snt rcmmndtns tht th prjct shld b pprvd vn thgh xprts sd th hsptl ws nt ndd. Drng th trl, Rzk's ttrn prsntd n ml xchng t th jr tht hntd t bm's rl n sttng p th schm. Th xchng shwd tht bm nd svn thr tp llns pltcns cnsltd n th lgsltn pssd n 2003 nd wr nvlvd n rcmmndng th mmbrs fr th brd. Mtthw Pckrng wrt th mm t Blgjvch's gnrl cnsl, Ssn Lchtnstn, n bhlf f Dvd Wlhlm, frmr chrmn f th Dmcrtc Ntnl Cmmtt, wh hdd Blgjvch's 2002 cmpgn fr gvrnr. Pckrng sd h nd Wlhlm hd "wrkd clsl" vr sx mnths wth stt lgsltrs. Th mm rcmmndd th ppnts lstd bv nd sttd, "r ttchd rcmmndtns rflct tht nvlvmnt" wth th pltcl ldrs. Th prsns ppntd t rg th vts, ncldng ths wh cntrbtd t Blgjvch nd bm, r cprtng n xchng fr mmnt r lghtr prsn sntncs. Fds sht dwn p-t-pl schms. nl tw p-t-pl schms sccdd bfr th Fds swpd n nd sht thm ll dwn. Blgjvch dd nt rcv th $1.5 mlln frm th Plnnng Brd dl bcs th hsptl ws nvr blt. Bt bm rcvd $20,000 frm th frst kckbck pd n th pnsn fnd schm nd th strw dnrs sd t fnnl th $10,000 pmnts, l Mlf nd Jsph rmnd, ls md $1,000 cntrbtns t bm's fld rn fr Cngrss n 2000. n ddtn, rmnd gv $500 t bm's snt cmpgn n Jn 30, 2003. n th smmr f 2005, rmnd's sn lndd n ntrn pstn n bm's Wshngtn ffc. bm ls rcvd cntrbtns fr hs snt cmpgn frm th tw prsns ppntd t rg th vt n th pnsn fnd brd. n Jn 30, 2003, Jck Crrgl cntrbtd $1,000, nd th thr ppnt, nthn bbd, dntd $500 n Jn 30, 2003, $250 n Mrch 5, 2004, nd $1,000 n Jn 25, 2004. Th prsn chsn t fnnl th kckbck n ftr schm, Mchl Wntr, dntd $3,000 t bm n Jn 30, 2003. ll ths ppl r ls cprtng n xchng fr mmnt r lssr prsn sntncs bt prsctrs pntd t drng clsng rgmnts tht ppl wh ntrd nt grmnts wth th gvrnmnt r rqrd t tll th trth r ll dls r ff.


nd nw th dscssn f th lw ndr whch bm wll g t prsn, 18 SC 1346:


< hrf="http://www.grm.cm/_lbrr/dwnlds/NPPrtcl-Fb2006.pdf." rl="nfllw">http://www.grm.cm/_lbrr/dwnlds/NPPrtcl-Fb2006.pdf.

Ths rtcl prvds brf gdnc s t th mnnr n whch crts hv ntrprtd 18 .S.C. § 1346, whch gnrll prvds tht fr prpss f fdrl ml nd wr frd sttts (18 .S.C. §§ 1341 nd 1343, rspctvl), "schm r rtfc t dfrd" nclds "schm r rtfc t dprv nthr f th ntngbl rght t hnst srvcs." Spcfcll, ths rtcl xmns th mnnr n whch crts hv ntrprtd th brd lngg f § 1346 n crcmstncs tht d nt nvlv th xplct brbr f pblc ffcls.
.
Bckgrnd
18 .S.C. § 1346 ws nctd n 1988, fr prpss f rvrsng th Sprm Crt's dcsn n McNll v. .S.,483 .S. 350 (1987). n McNll, th Sprm Crt vrrld lng ln f lwr crt dcsns b hldng tht th fdrl ml nd wr frd sttts dd nt ncmpss schms t dfrd ctzns f n ntngbl rght t hnst gvrnmnt srvc frm pbc ffcrs. d. t 355. B nctng 18 .S.C. § 1346, Cngrss rstrd "hnst srvcs" wthn th mbt f th fdrl ml nd wr frd sttts, mnng tht schm t dprv th pblc f "hnst srvcs" b pblc ffcl cld b pnshd s ml r wr frd (ssmng, f crs, tht sch n nstrmntlt ws sd s prt f th schm r rtfc).
.
Jdcl ntrprttns f th "Hnst Srvcs" Frd
.
Gnrl Prmtrs f th Sttt
Nt srprsngl, th mjrt f css tht hv nlzd th "hnst srvcs" frd st frth n 18 .S.C. § 1346 hv nvlvd th brbr f pblc ffcls, whr th chrg ndr § 1346 s n ddtn t thr chrgs. Hwvr, thr hv bn nmrs prsctns ndr § 1346 gnst pblc ffcls (nd ths wh hv crrptd pblc ffcls) fr trnsctns tht d nt nvlv trght brbr, bt whch nnthlss nvlv th prvsn f csh r gfts t pblc ffcl n xchng fr th pblc ffcl's xrcs f pwr n bhlf f th ndvdl r ntt prvdng th grtt.
Crts hv rcgnzd tht th trm "hnst srvcs," s sd n § 1346, s ncrdbl brd, bt th sttt hs srvvd rptd chllngs ssrtng tht t s ncnstttnll vg, wth crts rsrtng t "cmmn sns" sg f th phrs "hnst srvcs." n rjctng cnstttnl vd-fr-vgnss chllng t th sttt's wrdng, n crt pnd tht "[c]ncrt prmtrs tlnng th dt f hnst srvcs shld nt b ncssr. . . . Th cncpt f th dt f hnst srvcs sffcntl cnvs wrnng f th prscrbd cndct whn msrd n trms f cmmn ndrstndng nd prctc." .S. v. RBrk, 837 F. Spp. 162, 171 (S.D. W. V. 1993), ff'd. 58 F.3d 961 (4 th Cr. 1995). nthr crt dmnstrtd lttl ptnc fr th dfndnt's vd-fr-vgnss chllng n th cntxt f kckbck schm, hldng tht "[]t shld b pln t rdnr ppl tht ffrng nd ccptng lrg sms f mn n xchng fr ct cnclmn's vt s tp f cndct prscrbd b th lngg f § 1346." .S. v. Prds, 98 F.3d 1266, 1283 (11 th Cr. 1996). Nnthlss, crts hv rfsd t llw § 1346 t b sd s "ctch-ll" tht sbjcts vr nthcl r llgl ct t fdrl ml nd wr frd prsctn. S, .g., .S. v. Blm, 149 F.3d 649, 654-56 (7 th
Cr. 1998) (ntng, ntr l, tht "nt vr brch f fdcr dt wrks crmnl frd"); .S. v. Wlch, 327 F.3d 1081, 1107 (10 th Cr. 2003) ("th rght t hnst srvcs s nt vltd b vr brch f cntrct, brch f dt, cnflct f ntrst, r mssttmnt md n th crs f dlng"). Rcgnzng th dffclt f ntrprtng th ndfnd phrs "hnst srvcs," crts hv ttmptd t stblsh gnrl crtr tht mst b stsfd t sccssfll ssrt n "hnst srvcs" frd clm. n f th ldng crcts ntrprtng th scp f th hnst srvcs frd s th Frst Crct Crt f ppls, whch hld tht: Frst, . . . hnst srvcs cnvctns f pblc ffcls tpcll nvlv srs crrptn, sch s mbzzlmnt f pblc fnds, brbr f pblc ffcls, r th flr f pblc dcsn-mkrs t dscls cnflcts f ntrst. Scnd, . . . th brd scp f th ml frd sttt . . . ds nt ncmpss vr nstnc f ffcl mscndct tht rslts n th ffcl's prsnl gn. Thrd, nd mst mprtntl, . . . th gvrnmnt mst nt mrl ndct wrngdng b pblc ffcl, bt mst ls dmnstrt tht th wrngdng t ss s ntndd t prvnt r cll nt qstn th prpr r mprtl prfrmnc f th pblc srvnt's ffcl dts. .S. v. Czbnsk, 106 F.3d 1069, 1076 (1 st Cr. 1997) (mphss ddd) (ntrnl cttns nd qttns mttd), (dscssng th Frst Crct's prr dcsn n .S. v. Swr, 85 F.3d 713, 724 (1996). Th Svnth Crct hs hld tht "[m]ss f ffc (mr brdl, mss f pstn) fr prvt gn s th ln tht sprts rn f th mll vltns f stt lw fdcr dt . . . frm fdrl crm." .S. v. Blm, 149 F.3d 649, 655 (7 th Cr. 1998). Th crt wnt n t nt tht "n lmst ll f th ntngbl rghts css dcdd . . . (bfr McNll r snc § 1346), th dfndnt sd hs ffc fr prvt gn, s b ccptng brb n xchng fr ffcl ctn[,]" bt ls ntd tht "[s]crt cnvrsn f nfrmtn rcvd n fdcr cpct s frm f frd gnst th wnr f tht nfrmtn." d. ccrdngl, th Svnth Crct smmrzd ts tst fr n hnst srvcs frd s fllws: "[]n mpl dprvs hs mplr f hs hnst srvcs nl f h msss hs pstn (r th nfrmtn h btnd n t) fr prsnl gn" (mphss ddd). d. t 656-57.



cut and paste artists get nowhere here.
When is your endorsement co... (Below threshold)
jp2:

When is your endorsement coming? Throw your weight around, JT.

Obama will shortly be indic... (Below threshold)
John Ryskamp:

bm wll shrtl b ndctd ndr 18 SC 1346, whch s th sm prvsn ndr whch Rzk ws cnvctd.

Thr wll b MN cnts n bm's ndctmnt, mr thn thr wr n Rzk's. Ths wll gv dtls bt n f th ndctmnts, cncrnng th brd lgsltn whch bm spnsrd s prt f crmnl ntrprs. Bth Rzk nd bm r mmbrs f th Srn Mf, whch trds--crprtl--ndr th nm Gnrl Mdtrrnn nd s hdd b Ndhmch.

dn't thnk nd t dd tht f bm s lctd, th Srn mf wll b rnnng th ntd Stts Gvrnmnt. Ptrck Ftzgrld, hrr p.

Blw s dscssn f th brd lgsltn b vln Prngl, wh pblshd vr dtld srs n bm's crms t pdnws.cm. Ths rtcls hv bn ctd rnd th wrld.

Fllwng hr dscssn s lnk t dscssn, ls rprdcd, f 18 SC 1346, whch, gn s th sctn ndr whch bm wll b prsctd.

Frst, vln's dscssn:


Th vdnc prsntd n "Tn Rzk's] trl fcsd n hs nflnc vr ffcls n gttng mmbrs ppntd t th Brds. Prsctrs dd nt dscss hw th lgsltn gt pssd tht nbld th Plnnng Brd t b st p n w tht llwd fr th ppntmnt f mmbrs t rg th vts t bgn wth. Tht prt f th schm wll lkl b dtld n ftr ndctmnts, prbbl strtng wth Blgjvch. Blgjvch sgnd th llns Hlth Fclts Plnnng ct wth n ffctv dt f Jn 27, 2003. Hwvr, bfr h cld sgn th ct, bll hd t b pssd b th llns Hs nd Snt. s dscssd fll n Crtn Tm Prt , bm ws th nsd g n th snt wh pshd thrgh th lgsltn tht rsltd n th ct. bm ws ppntd chrmn f th Snt Hlth nd Hmn Srvcs Cmmtt. Th mnt th bll ws ntrdcd, t ws rfrrd t hs cmmtt fr rvw. Th spnsrs f th bll ls srvd n ths cmmtt wth bm. Wthn mnth, Chrmn bm snt wrd t th fll snt tht th lgsltn shld b pssd. n M 31, 2003, Snt Bll 1332 pssd nd spcfd tht th "Brd shll b ppntd b th Gvrnr, wth th dvc nd cnsnt f th Snt." Th lgsltn rdcd th nmbr f mmbrs frm 15 t 9, pvng th w fr th ppntmnt f fv-blc mjrt t rg th vts. Th crrpt mmbrs ppntd ncldd thr dctrs wh cntrbtd t bm. Mchl Mlk gv bm $10,000 n Jn 30, 2003 nd dntd $25,000 t Blgjvch n Jl 25, 2003. Mlk ls gv bm nthr $500 n Sptmbr 2003. Frtn Mssd dntd $25,000 t Blgjvch n Jl 25, 2003, nd gv ttl f $2,000 t bm n dffrnt dts. ftr h ws ppntd, Dr md lmnsr cntrbtd ttl f $3,000 t bm. lmnsr dd nt gv mn t Blgjvch. Whn th frst p-t-pl schm ws pt n pl, nd th pplctn fr pprvl f nw hsptl ws sbmttd, th Dprtmnt f Hmn Srvcs, lng wth fr thr llns gncs, snt rcmmndtns tht th prjct shld b pprvd vn thgh xprts sd th hsptl ws nt ndd. Drng th trl, Rzk's ttrn prsntd n ml xchng t th jr tht hntd t bm's rl n sttng p th schm. Th xchng shwd tht bm nd svn thr tp llns pltcns cnsltd n th lgsltn pssd n 2003 nd wr nvlvd n rcmmndng th mmbrs fr th brd. Mtthw Pckrng wrt th mm t Blgjvch's gnrl cnsl, Ssn Lchtnstn, n bhlf f Dvd Wlhlm, frmr chrmn f th Dmcrtc Ntnl Cmmtt, wh hdd Blgjvch's 2002 cmpgn fr gvrnr. Pckrng sd h nd Wlhlm hd "wrkd clsl" vr sx mnths wth stt lgsltrs. Th mm rcmmndd th ppnts lstd bv nd sttd, "r ttchd rcmmndtns rflct tht nvlvmnt" wth th pltcl ldrs. Th prsns ppntd t rg th vts, ncldng ths wh cntrbtd t Blgjvch nd bm, r cprtng n xchng fr mmnt r lghtr prsn sntncs. Fds sht dwn p-t-pl schms. nl tw p-t-pl schms sccdd bfr th Fds swpd n nd sht thm ll dwn. Blgjvch dd nt rcv th $1.5 mlln frm th Plnnng Brd dl bcs th hsptl ws nvr blt. Bt bm rcvd $20,000 frm th frst kckbck pd n th pnsn fnd schm nd th strw dnrs sd t fnnl th $10,000 pmnts, l Mlf nd Jsph rmnd, ls md $1,000 cntrbtns t bm's fld rn fr Cngrss n 2000. n ddtn, rmnd gv $500 t bm's snt cmpgn n Jn 30, 2003. n th smmr f 2005, rmnd's sn lndd n ntrn pstn n bm's Wshngtn ffc. bm ls rcvd cntrbtns fr hs snt cmpgn frm th tw prsns ppntd t rg th vt n th pnsn fnd brd. n Jn 30, 2003, Jck Crrgl cntrbtd $1,000, nd th thr ppnt, nthn bbd, dntd $500 n Jn 30, 2003, $250 n Mrch 5, 2004, nd $1,000 n Jn 25, 2004. Th prsn chsn t fnnl th kckbck n ftr schm, Mchl Wntr, dntd $3,000 t bm n Jn 30, 2003. ll ths ppl r ls cprtng n xchng fr mmnt r lssr prsn sntncs bt prsctrs pntd t drng clsng rgmnts tht ppl wh ntrd nt grmnts wth th gvrnmnt r rqrd t tll th trth r ll dls r ff.


nd nw th dscssn f th lw ndr whch bm wll g t prsn, 18 SC 1346:


< hrf="http://www.grm.cm/_lbrr/dwnlds/NPPrtcl-Fb2006.pdf." rl="nfllw">http://www.grm.cm/_lbrr/dwnlds/NPPrtcl-Fb2006.pdf.

Ths rtcl prvds brf gdnc s t th mnnr n whch crts hv ntrprtd 18 .S.C. § 1346, whch gnrll prvds tht fr prpss f fdrl ml nd wr frd sttts (18 .S.C. §§ 1341 nd 1343, rspctvl), "schm r rtfc t dfrd" nclds "schm r rtfc t dprv nthr f th ntngbl rght t hnst srvcs." Spcfcll, ths rtcl xmns th mnnr n whch crts hv ntrprtd th brd lngg f § 1346 n crcmstncs tht d nt nvlv th xplct brbr f pblc ffcls.
.
Bckgrnd
18 .S.C. § 1346 ws nctd n 1988, fr prpss f rvrsng th Sprm Crt's dcsn n McNll v. .S.,483 .S. 350 (1987). n McNll, th Sprm Crt vrrld lng ln f lwr crt dcsns b hldng tht th fdrl ml nd wr frd sttts dd nt ncmpss schms t dfrd ctzns f n ntngbl rght t hnst gvrnmnt srvc frm pbc ffcrs. d. t 355. B nctng 18 .S.C. § 1346, Cngrss rstrd "hnst srvcs" wthn th mbt f th fdrl ml nd wr frd sttts, mnng tht schm t dprv th pblc f "hnst srvcs" b pblc ffcl cld b pnshd s ml r wr frd (ssmng, f crs, tht sch n nstrmntlt ws sd s prt f th schm r rtfc).
.
Jdcl ntrprttns f th "Hnst Srvcs" Frd
.
Gnrl Prmtrs f th Sttt
Nt srprsngl, th mjrt f css tht hv nlzd th "hnst srvcs" frd st frth n 18 .S.C. § 1346 hv nvlvd th brbr f pblc ffcls, whr th chrg ndr § 1346 s n ddtn t thr chrgs. Hwvr, thr hv bn nmrs prsctns ndr § 1346 gnst pblc ffcls (nd ths wh hv crrptd pblc ffcls) fr trnsctns tht d nt nvlv trght brbr, bt whch nnthlss nvlv th prvsn f csh r gfts t pblc ffcl n xchng fr th pblc ffcl's xrcs f pwr n bhlf f th ndvdl r ntt prvdng th grtt.
Crts hv rcgnzd tht th trm "hnst srvcs," s sd n § 1346, s ncrdbl brd, bt th sttt hs srvvd rptd chllngs ssrtng tht t s ncnstttnll vg, wth crts rsrtng t "cmmn sns" sg f th phrs "hnst srvcs." n rjctng cnstttnl vd-fr-vgnss chllng t th sttt's wrdng, n crt pnd tht "[c]ncrt prmtrs tlnng th dt f hnst srvcs shld nt b ncssr. . . . Th cncpt f th dt f hnst srvcs sffcntl cnvs wrnng f th prscrbd cndct whn msrd n trms f cmmn ndrstndng nd prctc." .S. v. RBrk, 837 F. Spp. 162, 171 (S.D. W. V. 1993), ff'd. 58 F.3d 961 (4 th Cr. 1995). nthr crt dmnstrtd lttl ptnc fr th dfndnt's vd-fr-vgnss chllng n th cntxt f kckbck schm, hldng tht "[]t shld b pln t rdnr ppl tht ffrng nd ccptng lrg sms f mn n xchng fr ct cnclmn's vt s tp f cndct prscrbd b th lngg f § 1346." .S. v. Prds, 98 F.3d 1266, 1283 (11 th Cr. 1996). Nnthlss, crts hv rfsd t llw § 1346 t b sd s "ctch-ll" tht sbjcts vr nthcl r llgl ct t fdrl ml nd wr frd prsctn. S, .g., .S. v. Blm, 149 F.3d 649, 654-56 (7 th
Cr. 1998) (ntng, ntr l, tht "nt vr brch f fdcr dt wrks crmnl frd"); .S. v. Wlch, 327 F.3d 1081, 1107 (10 th Cr. 2003) ("th rght t hnst srvcs s nt vltd b vr brch f cntrct, brch f dt, cnflct f ntrst, r mssttmnt md n th crs f dlng"). Rcgnzng th dffclt f ntrprtng th ndfnd phrs "hnst srvcs," crts hv ttmptd t stblsh gnrl crtr tht mst b stsfd t sccssfll ssrt n "hnst srvcs" frd clm. n f th ldng crcts ntrprtng th scp f th hnst srvcs frd s th Frst Crct Crt f ppls, whch hld tht: Frst, . . . hnst srvcs cnvctns f pblc ffcls tpcll nvlv srs crrptn, sch s mbzzlmnt f pblc fnds, brbr f pblc ffcls, r th flr f pblc dcsn-mkrs t dscls cnflcts f ntrst. Scnd, . . . th brd scp f th ml frd sttt . . . ds nt ncmpss vr nstnc f ffcl mscndct tht rslts n th ffcl's prsnl gn. Thrd, nd mst mprtntl, . . . th gvrnmnt mst nt mrl ndct wrngdng b pblc ffcl, bt mst ls dmnstrt tht th wrngdng t ss s ntndd t prvnt r cll nt qstn th prpr r mprtl prfrmnc f th pblc srvnt's ffcl dts. .S. v. Czbnsk, 106 F.3d 1069, 1076 (1 st Cr. 1997) (mphss ddd) (ntrnl cttns nd qttns mttd), (dscssng th Frst Crct's prr dcsn n .S. v. Swr, 85 F.3d 713, 724 (1996). Th Svnth Crct hs hld tht "[m]ss f ffc (mr brdl, mss f pstn) fr prvt gn s th ln tht sprts rn f th mll vltns f stt lw fdcr dt . . . frm fdrl crm." .S. v. Blm, 149 F.3d 649, 655 (7 th Cr. 1998). Th crt wnt n t nt tht "n lmst ll f th ntngbl rghts css dcdd . . . (bfr McNll r snc § 1346), th dfndnt sd hs ffc fr prvt gn, s b ccptng brb n xchng fr ffcl ctn[,]" bt ls ntd tht "[s]crt cnvrsn f nfrmtn rcvd n fdcr cpct s frm f frd gnst th wnr f tht nfrmtn." d. ccrdngl, th Svnth Crct smmrzd ts tst fr n hnst srvcs frd s fllws: "[]n mpl dprvs hs mplr f hs hnst srvcs nl f h msss hs pstn (r th nfrmtn h btnd n t) fr prsnl gn" (mphss ddd). d. t 656-57.

cut and paste artists get nowhere here.
"Well, one of the key figur... (Below threshold)
bryanD:

"Well, one of the key figures in getting Rich his pardon was Eric Holder, who was the #2 man in the Justice Department.."-jt

A key...-er figure in getting Rich his pardon was one I. Lewis "Scooter" Libby, Marc Rich's personal attorney (and BFF) of over 10 years. In fact, congratulations were telephonically conveyed by brand new V.P Chief of Staff "Scooter" Libby from the Vice President's own office in the White House(!). Embarrassing testimony ensued, of course. (see Pinkerton's coverage in Time(?) of the Rich pardon hearings, viz. Scooter's testimony.)

Epilogue: then Scooter was given a spit bath in time for Plame to be "safely" smeared by a clutch of GOP amnesiacs.



Your comment reminds me of ... (Below threshold)
Bob:

Your comment reminds me of Teddy Moore Kennedy's Democrat primary opponent when he first ran for the Senate: "If my opponent's name were Edward Moore, his candidacy would be laughed at as a joke." At that time Teddy's brother was President, and the Kennedy name carried him easily to victory. BHO has the advantage of being a "clean" (according to Joe Biden), articulate black candidate whose record is so thin that his opponents didn't have much to tag him with, other than his decades long close relationship with radicals and race haters. His "change" is coincidentally the exact platform that every Democrat candidate has run on: salvation through more taxes and more gov't program. Maybe he can continue to sell Hope (hype?) but there won't be any real change from what the Democrats have been pushing for the last 60 years.

I agree, Sen. Obama has no ... (Below threshold)
anonymous:

I agree, Sen. Obama has no 'plan for change' unless you want the change to mean that we slip more into socialism than freedom of being a self governing nation (ie: we the people are in charge)

I noted the headline of the article as change is only 'skin deep'... I take a literal look at that headline. It's ironic; for years America was told don't judge by the color of skin pigment. (very true) I recall the words of Martin Luther King Jr. "I have a dream, that one day men will not judge men by the color of their skin but by the depth of their character." So...what is the headline by the MSM on Obama winning the dem nomination? Obama
the first "black" to win dem nomination (or something of that effect) and that's all people are seeing...THE SKIN COLOR...

No matter that Obama believes abortion of innocent life is "a choice"

No matter that Obama has yet to figure out we have men and we have women 'for a reason' that there is a difference in the sexes and that
good society recognizes why one honors the 'love' between man and woman. That one need not 'marry' to be respected...that love is not about 'sex' - therefore, there is no reason to allow two of the same gender to marry and be given monetary reward.

Obama is not for fighting the real oppressed persons in Iraq but seeks only a 'subjective'
peace at home - looking the other way at how
persons in other nations have lived with terror on a daily basis. Everyone 'hates war'
but to deny the existence of evil on others,
just to have a 'false peace' for a time; is
naive.

Before one can speak of making changes, one needs to first change their own ideas. Obama
is of liberal mind. To insist that Roe v Wade
was 'right law' and then state he is a Christian, is to state 'he lacks understanding' of what Christian is about.
Another irony, Mr. Obama speaks of separation of church and state yet Mr. Obama very early on, wanted to stress the point he's of a certain church. ??? So really, Mr. Obama knows in his head why it's important to belong to a faith practice, but he's not connecting 'the practice of faith' to 'life itself' ... why we are on this earthly journey and why LIFE is sacred. NEW LIFE...for 'the old' does pass away. A look at China's one child policy and how now, after the earthquake they 'might' begin to understand - LIFE is sacred...and it can't be replaced at a government 'decree'

'the flesh' is of no avail...it perishes, the Spirit is what brings life...and any who don't honor the Spirit of Love that brings LIFE to a society; is 'not at all' for 'the littlest guy'
A woman's body is her body when it remains her SINGLE body; once she decides to unite with another, it is no longer 'just her body' ...
Mr. Obama can't understand this notion.



dude .. I ain't a obama sup... (Below threshold)
monish:

dude .. I ain't a obama supporter but you got some very biased views there. Goodluck & God Bless!!

BryanD; Libby did indeed pl... (Below threshold)
Oyster:

BryanD; Libby did indeed play a role in Rich's exoneration. I was dismayed that Libby would represent such scum as Rich. A good question is this: Why is Libby's role condemned by the left as a means to berate the right, rather than a condemnation by the left based on principle? Back when Clinton pardoned Rich, left AND right were appalled. Now Libby's role is only used in the context of political bashing.

But Libby was Rich's lawyer too. Isn't it a lawyer's job to represent the interests of their client? If I remember correctly, Holder had no such compelling interest, other than personal - if you're familiar with the history at all.

THIS is sure change for the... (Below threshold)
Ted:

THIS is sure change for the GOP that's more than skin deep! Take a look at this YouTube re Alaska Gov Sarah Palin (as Veep for McCain)-

http://www.youtube.com/watch?v=TXfiOSCfY44&eurl=http://palinforvp.blogspot.com/

to the one who said "dude" ... (Below threshold)
anonymous:

to the one who said "dude" you have some biased views there...after my blog; I'm assuming that was directed at my blog but perhaps it was directed at the main article. [not sure]

If it was directed to me, let me provide the definition of 'bias'

bias: To influence in a particular typically unfair direction; prejudice

Quite simply: if there is any 'bias' out there,
it is found in the MSM; who attempts to influence in the direction of 'liberal' and writes so as to favor one candidate over another, simply because that candidate is of a certain party. The D party.

The use the 'political correct terms' of
pro-choice rather than state as is: this candidate favors aborting the unborn. They
use 'tolerant' in place of understanding that certain actions are not going going to reap
the individual a good life but merely a temporal in-the-moment 'fun' ... ie: they
condone actions that reap a bad end eternally speaking.

Hard for some to fathom it; since that catch phrase of the 60's 'do your own thing' but
There is right action and there is wrong action. One bears 'good fruit' (good results)
the other puts persons on a slippery slope of
misery that's hard to climb out of. (concisely: the slippery slope is called SIN;
Self Indulgent Nature)

Any who condones someone in their wrong ideas; is not 'for' but against your having a good life.

Something democrat politici... (Below threshold)
anonymous:

Something democrat politicians out for self haven't yet figured out; you can't MAKE the poor become wealthy. They can't. I can't. No one can MAKE someone 'get wealth' ie: have.
IMPOSSIBLE.

You can give a man a fish; and you've taken care of need 'for a day' ...tomorrow the man is back asking to be fed again. IF however, one were to TEACH how to do...THEN, you have
INDEPENDENCE. Does the democrat politician want the American citizen who has not to become 'self' sufficient? Of course not!
If 'the poor' begin accepting responsibility for thier own lives; the democrat politician
is out of 'a job.' [there's only so many lawyers to go around and so many books to write on how BAD life is]

LOL (that means laugh out loud) Those who vote for a democrat who says "I can make your life better" is a bit uhmmm...well; non-experienced in life.

Contrary to some minds; being handed a bunch of dollars isn't going to 'better' them. If a
truly wealthy man won a million dollars in the lottery and a very poor guy won the same amount, It's my bet - in one year - the wealthy person would have MORE than what he started with; and helped more persons around him in the process.

The poor guy; naturally, must first take care of his own basics. BUT; in the poor man's mind, who equates esteem with having - he would not buy a used car but a nice comfortable "stylish" car, He wouldn't buy a
small condo of maybe two bedrooms but a 5 bedroom home with swimming pool, He would
go to the fanciest restaurants and be LAVISH
with the tip, he would take a REALLY NICE vacation (after all, he deserves it he would muse) [no day trips or just an occasional
local vacation in a 'simple condo' for a week]
And, I am assuming he would treat all his friends to NICE gifts; which is very generous
except that ...well, without understanding, the gift isn't going to make his friends happier. Maybe 'temporarily' but

HAPPINESS that lasts is within. It is God.
and God within, gives all one needs to be happy. Self Control to say NO to temptations:
be it drink, cigarettes, or pornographic shows.
He gives the Spirit of Understanding and a knowledge of how to live life (pursue learning, and grow a skill and one can take care of self and others also; which does much for the esteem)

When much is given; much is required...that means unless you understand WHY you were able to acquire - the wealth is fleeting...lost quickly...and one is back to dependency on another.


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