A post of this nature has appeared on these pages numerous times.
Even though the current Supreme Court is often ideologically divided, the Court has shown remarkable consistency in recent years in rejecting overly expansive interpretations of a criminal statute by the Department of Justice.
This week’s decision in Snyder v. U.S. was just the latest example as the Supreme Court rejected the DOJ’s expansive interpretation of a federal law for at least six reasons. (See here for the post summarizing the decision).
The Snyder decision follows a clear trend over the last approximate decade of the Supreme Court overturning expansive DOJ interpretations of federal criminal statutes.
For instance in U.S. v. Skilling (2010), the Supreme Court rejected the DOJ’s “honest services fraud” theory of criminal prosecution. Instead of the broad construction the DOJ urged, the Court adopted a narrow interpretation of the relevant statute and reiterated “if Congress desires to go further, it must speak more clearly.”
Likewise in Bond v. U.S. (2013), the Supreme Court unanimously rejected the DOJ’s theory of criminal prosecution. Instead of the expansive construction of the term “chemical weapons” the DOJ urged, the Court adopted a narrow interpretation stating that the DOJ’s interpretation “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”
Similarly, as highlighted in this prior post, in U.S. v. Yates (2015), the Supreme Court again rejected the DOJ’s theory of criminal prosecution in the infamous are fish “tangible objects” case. Calling the DOJ’s enforcement theory an “unrestrained” and “unbounded” reading of relevant statute, the Court reversed the 11th Circuit’s opinion affirming the criminal conviction.
In U.S. v. McDonnell (2015) (see here for the prior post), the Supreme Court again rejected the DOJ’s theory of criminal prosecution. Calling the DOJ’s theory of prosecution “boundless,” the Court adopted a narrow interpretation of the meaning of “official action” (a term that also appears in the FCPA) in the federal bribery statute. As stated by the Court:
“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”
The McDonnell court further stated (internal citations omitted)
“[W]e cannot construe a criminal statute on the assumption that the Government will “use it responsibly.” The Court in Sun-Diamond declined to rely on “the Government’s discretion” to protect against overzealous prosecutions under §201, concluding instead that “a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” A related concern is that, under the Government’s interpretation, the term “official act” is not defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” or “in a manner that does not encourage arbitrary and discriminatory enforcement.” Under the “‘standardless sweep’” of the Government’s reading, public officials could be subject to prosecution, without fair notice, for the most prosaic interactions. “Invoking so shapeless a provision to condemn someone to prison” for up to 15 years raises the serious concern that the provision “does not comport with the Constitution’s guarantee of due process.” Our more constrained interpretation of §201(a)(3) avoids this “vagueness shoal.””
In Digital Realty Trust v. Somers (2018) (see here for the prior post) the Supreme Court once again reminded us that the law means what actual words in a specific statute say (not what other similar statutes may say) and not what the SEC interprets words in a statute to mean.
In Kelly v. U.S. (2020) (see here for the prior post) (the so-called Bridgegate case in which the DOJ charged former public officials who worked at or with the Port Authority of New York and New Jersey and had political ties to former New Jersey Governor Chris Christie), the Supreme Court unanimously reversed criminal convictions even though “the evidence the jury heard no doubt shows wrongdoing – deception, corruption, abuse of power.” In so doing, the court stated that “the federal fraud statutes at issue do not criminalize all such conduct” and that “not every corrupt act by state or local officials is a federal crime.”
In Van Buren v. U.S. (2021) (see here for the prior post), the Supreme Court rejected the DOJ’s expansive interpretation of the Computer Fraud and Abuse Act and concluded that actual words in a statute have meaning and that federal criminal statutes are not all-purpose ethics statutes.
In Ciminelli v. United States (2023) (see here for the prior post) the Supreme Court rejected the DOJ’s expansive interpretation of the federal wire fraud statute holding that federal fraud statutes criminalize only schemes to deprive people of traditional property interests and that “potentially valuable economic information” “necessary to make discretionary economic decisions” is not a traditional property interest. In so holding, the court noted that the government’s enforcement theory was “unmoored from the federal fraud statutes’ text” and “vastly expands federal jurisdiction without statutory authorization.”
In Percoco v. United States (2023) (see here for the prior post) the Supreme Court considered “whether a private citizen with influence over government decision-making can be convicted for wire fraud on the theory that he or she deprived the public of its “intangible right of honest services.” At trial the defendant was convicted based on instructions that required the jury to determine whether he had a “special relationship” with the government and had “dominated and controlled” government business. The Supreme Court concluded that this is not the proper test for determining whether a private person may be convicted of honest-services fraud because the jury instruction did not define “the intangible right of honest services” “ ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited,’” or “‘in a manner that does not encourage arbitrary and discriminatory enforcement.’”
And then of course there were Supreme Court benchslaps of SEC statute of limitations positions in Gabelli v. SEC (2013) (see here for the prior post) and Kokesh v. SEC (2017) (see here for the prior post) as well as the Supreme Court’s benchslap of the Federal Trade Commission in 2021 (see here for the prior post) as well as the Department of Health and Human Services in 2021 (see here for the prior post).
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