Private: In an opinion by Judge Easterbrook . . .

Chief Judge Easterbrook, who was appointed by President Reagan and is closely associated with the Federalist Society, is widely viewed as a strong conservative.  Today, he released an opinion describing as "preposterous" a prosecution brought by a U.S. Attorney whom several Senators have accused of improper motives.

On April 5th, Chief Judge Easterbrook's court took the unusual step of overturning a felony conviction just hours after oral argument, and ordering the defendant immediately released from prison.  Judge Easterbrook's opinion explains the reasoning of the three judge panel that issued this order.

Last year, U.S. Attorney Steven Biskupic brought a prosecution against Georgia Thompson, claiming that Thompson awarded a state contract in a manner that conflicts with state regulations, and that this misapplication of state law constitutes a federal felony.  The company which received the contract had made donations to Democratic causes, and the Thompson case was used by in attack ads by Wisconsin Democratic Governor Jim Doyle's opponent in an unsuccessful attempt to defeat the Governor's reelection campaign.  Although Thompson was convicted by the trial court, her subsequent exoneration has sparked a Senate inquiry into whether or not the prosecution was politically motivated.

In Judge Easterbrook's opinion, the Seventh Circuit described the prosecution of Thompson as "preposterous," and argued that absurd a list of officials ranging from office managers to federal judges could be convicted of felonies under Biskupic's theory:

The prosecutor’s theory, which the jury accepted, is that Thompson deprived Wisconsin of her “honest services”— that is, of her duty to implement state law the way the administrative code laid it down, with only 300 of 1,200 points apportioned according to price, while 200 points were available to the best-looking or most mellifluous oral presenter, even if Thompson deemed that allocation silly or counterproductive.

Once again that approach has the potential to turn violations of state rules into federal crimes. When the Supreme Court reverses a court of appeals, it is apt to say (as the prosecutor says about Thompson) that public officials have failed to implement the law correctly. Does it follow that judges who are reversed have deprived the United States of their honest services and thus committed mail fraud? (Judicial decisions are mailed.) How about the thousands of federal officials who contract for everything from pencils to aircraft carriers? Disappointed would-be vendors may appeal through an elaborate bidprotest system—first to a Board of Contract Appeals, then to the Court of Federal Claims, and finally to the Federal Circuit. Reversals are common: Boards reverse contracting officers, the Court of Federal Claims reverses the Board only to be reversed in turn by the Federal Circuit. At each stage a reversal represents a conclusion that the predecessor has not implemented statutes and regulations correctly. But has anyone committed a crime in this sequence, unless he is on the take? Because no one really thinks that §1346 treats all legal errors by public employees as criminal, it has been necessary to cabin the reach of that statute.