Dowdification at Miller Chevalier

Regular readers of the ACR Blog know that this author is a fan of James Taranto's Best of the Web column at the Wall Street Journal. Mr. Taranto is credited with coining the term "Dowdification". A practice pioneered by New York Times columnist Maureen Dowd, to "Dowdify" means to selectively omit words or phrases from a quote in order to radically change the quote's meaning. The ACR Blog believes that it has discovered an example of Dowdification in a filing in U.S. v. Kevin Ring by lawyers at Miller Chevalier.

The ACR Blog is in the midst of drafting a post analyzing Mr. Ring's Revised Motion for Judgment of Acquittal (Revised MJOA). Believe it or not, the ACR Blog believes that Mr. Ring's defense team makes a good argument overall that Mr. Ring should be acquitted on the Honest Services Fraud (HSF) counts in the indictment. We are hopeful that the DoJ will be able to counter some of the strongest points raised by the defense. Unfortunately, not all the arguments of the defense are very strong. In fact, one is seemingly misleading.

As we all know, the U.S. Supreme Court handed down a major HSF ruling in June. Both prosecutors and defense lawyers are scrambling to figure out what the new boundaries of the HSF law are. There are two basic positions:

1. Bribery-esque HSF remains intact. Prosecutors need only to show that a stream of things of value influenced official acts. This is called the Retainer Theory of HSF. The Justice Department can be expected to advance this position.

2. The Supreme Court defined HSF and the Bribery statute to have identical boundaries. Therefore, in order to sustain a conviction of HSF, prosecutors have the difficult burden of proving a quid pro quo arrangement where a specific thing of value was exchanged for a specific official act. Expect defense attorneys to advance this theory.

In an effort to show that case law supports definition #2 of post-Skilling HSF, the defense quotes United States v. Kemp (Revised MJOA, p. 36):

[t]he key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action

Emphasis in original

Ooh. This reading of Kemp would require a quid pro quo arrangement, doesn't it? The parties must intend for the bribe to be made in exchange for an official action. Good for the defense, huh?

Let's actually go to Kemp and review a more complete selection of the quote (p. 37):

Moreover, we agree with the government that the District Court’s instruction to the jury that it could convict upon finding a “stream of benefits” was legally correct. The key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action; the government need not prove that each gift was provided with the intent to prompt a specific official act.

Kemp supports the "stream of benefits" or "retainer" theory favored by the Justice Department. In fact, "the government need not prove that each gift was provided with the intent to prompt a specific official act." It appears to us that it is sufficient for the government to show that both sides understood that a stream of benefits was given in exchange for some (undefined) official action.

This Dowdification distracts from the strength of the defense's other arguments. Specifically, we find the defense's claim that the DoJ failed to show a material misrepresentation, a necessary element of HSF, to be quite strong. We hope the DoJ will be able to effectively respond the defense on that issue. This is a complicated issue and we hope to have a post ready soon.