U.S. Attorney Ortiz’s Federal Prosecutors Reined In: Will Judges Follow the Law?

McDonnell vs United States will have serious ramifications on the recent actions by the Boston U.S. Attorney Ortiz’s continuing intrusion in to matters best left to the state.

It is hard to see how the Appeals Court will uphold the conviction of Probation Commissioner John O’Brien after that decision; it is questionable whether the Teamsters who have been indicted under the Hobbs Act will see their cases go to trial; it is likely that the attempt by Ortiz’s office to run the Boston mayor’s office and the Boston Public Schools will not be able to withstand honest judicial scrutiny.

The Supreme Court is worried that federal prosecutors like those young college girls on spring vacation have gone wild with their broad interpretation of the federal law and with their overreach into activities that belong to the state. We have seen Ortiz’s office has become involved in gimmick prosecutions seeking publicity in the media. On more than one occasion it has used the civil rights statute to start up an investigation of a state matter and then bring about a prosecution under another statute such as lying to a federal officer or obstructing a federal investigation. No civil right violation occurred, none was found, and none was prosecuted. It is a dastardly and underhanded trick to fabricate an investigation simply for the purpose of hoping some poor guy or gal will slip up during its investigation so that it can bring another type of prosecution.

Here are the words of the Supreme Court that should bring comfort to the people of a state and positively remind the federals to stay out of state matters. The McDonnell Court noted: “The Government’s position also raises significant federalism concerns. A State defines itself as a sovereign through “the structure of its government, and the character of those who exercise government authority.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). That includes the prerogative to regulate the permissible scope of interactions between state officials and their constituents. Here, where a more limited interpretation of “official act” is supported by both text and precedent, we decline to “construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards” of “good government for local and state officials.” McNally v. United States, 483 U. S. 350, 360 (1987); see also United States v. Enmons, 410 U. S. 396, 410–411 (1973) (rejecting a “broad concept of extortion” that would lead to “an unprecedented incursion into the criminal jurisdiction of the States”).[my emphasis] ­

The noted civil rights attorney Harvey Silverglate wrote with respect to the O’Brien trial: “Now the trial is over, but no one is wondering aloud whether the chosen remedy — prosecution in federal court — was, perhaps, worse than the disease itself.”  He pointed to a prior Supreme Court case that said when a federal statute: “would mark a major inroad into a domain traditionally left to the States, we refuse to adopt the broad reading in the absence of a clearer direction from Congress.” He noted how Judge Young delivered: to the jury an unusually prolix and complex set of jury instructions — his attempt to clarify legal concepts that, in reality, could not be made clear.”

O’Brien’s conviction should be reversed based on that alone but certainly after the McDonnell decision. Based on the McDonnell language the Ortiz’s investigators have no business intruding on the Boston Public Schools or into the Boston Mayor’s office in determining whether its idea of “good government” procedures are being met or trying to determine what is the appropriate level of discipline that should be given out by the administrators at Boston Latin School.

Nor should it be intruding on the rights of union people to set up picket lines against a business by calling it a criminal extortion. Every strike, work stoppage, picketing, or organizing could be labeled as such. The workers are telling the owners they are going to take certain actions such as a strike in order to get certain benefits such as an eight-hour workday.

The state as a sovereign has to right to be free from an overly intrusive federal prosecutor’s office. The only question that remains is whether the Boston federal judges will follow the demands of the Supreme Court or continue to act in fear of the prosecutor’s office and aid and abet it in its intrusion into state matters as Judge Young had to do in the O’Brien case.