RICHARD NIXON: “What is the situation on Daley, ah, and his people—Kerner. Are you gonna do anything out there, or not?”
St. Eve told me afterward she wasn’t the first judge who ever showed up to hear the Supreme Court review his or her handiwork, not that it’s routine. That was all she could tell me: the case might be remanded to her, so she wouldn’t discuss any of the legal issues the court raised or even say whether she enjoyed her busman’s holiday.
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Anton Kerner believes his father was prosecuted because President Nixon wanted to get rid of him. The chairman of the 1968 U.S. Commission on Civil Disorders, which concluded that America was dividing into two separate and unequal societies, Kerner testified on May 25, 1971, before a Senate subcommittee exploring unemployment, race, and poverty. Three days later, Nixon and his attorney general, John Mitchell, had the taped exchange that begins above, an exchange Anton Kerner believes explains pretty much everything.
NIXON: “I’d like to see you get him.”
Federal prosecutors had found themselves a handy new weapon, and its use spread—until 1987, when in the case of McNally v. United States the Supreme Court ruled it unconstitutional, declaring bluntly that the mail fraud statute “does not refer to the intangible right of a citizenry to good government.” If Otto Kerner had asked the Seventh Circuit Court of Appeals, on which he’d once sat, to reverse his conviction, it almost certainly would have—similar convictions were being overturned, including one of a former governor of Maryland. But Kerner died in 1976. So Anton asked the Seventh Circuit instead and was told the petition could only be filed by his father. But Anton insists that McNally “represented a substantive—though not formal—vindication.”
The Black appeal is one of three cases the Supreme Court has decided to hear as it revisits the theory of honest services fraud, and it probably makes the shakiest case of the three that the theory did the petitioner an injustice—clearly Black profited handsomely from his manipulations. Honest services fraud was simply a backup theory the prosecution gave the jury in case it decided the money Black helped himself to was his own. But then, the argument wasn’t about Black; it was about points of law.
So to some extent the justices were just marking time on December 8, taking potshots at the statute. Scalia, the vaunted “textualist,” led the way in mocking the text for what it does not say.
