How many wrongs make a right?

Professor Erwin Chemerinsky's commentary on McDonnell v. United States, 2016 DJDAR 6444 (June 27, 2016) has thought-provoking implications about the source and substance of Supreme Court jurisprudence. ["8 wrongs don't make a right," Sept. 19].

Chemerinsky's contention that the 8-0 decision of the court was "wrong" is "not even wrong." Not only does the analysis fail to appreciate the wisdom in the decision, but it fails to recognize let alone resolve the obvious question he implicitly raises - what does "wrong" mean?

The court was interpreting a detailed, ambiguous, arguably convoluted, federal criminal statutory definition. Misconstruction, misunderstanding and ill-motivated prosecution can result in a person's loss of freedom for decades - worse than being on the no-fly list and only slightly better than being a registered sex offender. When determinate sentencing proposals are debated, it is often pointed out that "determinate" does not mean non-discretionary. What it means is that discretion is shifted from the judge to the prosecutor. Chemerinsky's analysis suffers from insufficient attention to that fact. When the Roberts Court unanimously falls on the side of protecting the accused in an opinion redolent of the Warren Court, the cognoscenti should sit up and take notice. If these "8 wrongs" do not make a "right," how many would it take? What if there were 10 (or 50) such decisions by federal appellate courts? Would that make the McDonnell decision "right"? If not, why not?

It is one thing to denounce an egregious court decision as a violation of fundamental human rights, whether or not explicitly guaranteed by the constitution. That is a perspective arising from some recognizable version of natural law, whether religious or secular humanist. But to complain that standards of right or wrong in interpretation of criminal statutes are independent of the collective determination of the courts is an intellectual and practical dead end. As the saying goes, the Supreme Court is not supreme because it is infallible but is infallible because it is supreme. In such matters, interests of clarity and limiting potentially abusive discretion should trump statist policy preferences. Exceptions for decisions offending natural right and humanistic ethics are duly noted, but they are in another realm entirely.

Former Virginia Gov. Robert McDonnell asked for the following jury instruction, which the trial court denied: "merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, 'official acts.'" It should be no surprise that the court found that to be error.

The court noted that the government's interpretation of "official act" "encompasses nearly any activity by a public official. In the government's view, 'official act' specifically includes arranging a meeting, contacting another public official, or hosting an event - without more - concerning any subject, including a broad policy issue such as Virginia economic development."

To allow such prosecutorial overreach, even to catch "bad guys" on gossamer connections with policy issues would allow prosecutors to police policy debate. That would not be "right."

The court's decision was adequately if not amply grounded in the statutory text defining "official act": "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." Both the prosecutors and Chemerinsky simply ignored the word "on" in their interpretation. Chemerinsky laments that this decision "will make it much harder for the government to prosecute and convict those who misuse their power for personal gain." Correct. It is supposed to be hard, not easy. Imagine if a Trump attorney general went after anyone who received an honorarium for a Clinton Foundation event.

The court best put its decision into a nutshell by quoting from a prior decision: "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."

Justice Roberts and the court did a good job on that decision. Professor Chemerinsky probably never anticipated he would miss Justice Scalia.