0033 1 PROFESSOR FRANZESE: Ross, the public 2 trust, as you so nicely mentioned at the start of 3 your remarks, has

been compromised at the hands of 4 quite a few public officials. That said, apart 5 from the statutory structures on point, which 6 prohibit gratuities and kick backskickbacks, and mindful 7 that a lot of the compromise comes as a 8 consequence of the more insidious more intricate 9 webs and layers of corrosive influence. If it's is 10 not The Honest Services Statute, than what is it 11 to remediate in those trickier areas? 12 MR. GARBER: I think that's is a great 13 question, because one of the things I think we 14 have to remember is that when we talk about 15 federal public corruption law, we're are really 16 talking about sort of the equivalent of -- when 17 there's is a federal criminal investigation and 18 prosecution, that's is sort of a mushroom cloud that 19 envelops the public official, their family, their 20 friends, their community, their colleagues and 21 damages in some ways the public's faith in their 22 system of government. So a federal criminal 23 investigation in charge is the most significant 24 thing that can happen, and I think should be 25 reserved for the most significant cases. There 0034 1 are other ways that issues of distasteful public 2 conduct can be addressed and are often addressed. 3 They'reThey are addressed by things like Professor 4 Franzese's task force. They areThey're addressed on the 5 local and municipal and statewide by strong ethics 6 laws and by strong enforcement of ethics laws. 7 Look, in the past couple of years, few years, I'veI have 8 done two gubernatorial impeachments, you know, 9 situations where a state legislator will stay that 10 they think that the conduct of their public 11 official, their chief executive, was so 12 reprehensible, so distasteful, that perhaps, that 13 public official should be removed from office. 14 There are a lot of tools that I think can and 15 should be used. And federal criminal prosecution 16 which again, you know, I think really is the 17 equivalent of the nuclear weapons conduct should 18 be reserved for the most serious cases.

19 PROFESSOR FRANZESE: And I think 20 that'sthat is a very good point. Matt, do you want to 21 respond? 22 MR. TROIANO: Yes. Just, I guess to 23 play devil's advocate, I think the question is, 24 are all of these criminal statutes, are they 25 ensnaring? Are they catching people or widening 0035 1 the net to the point that some of these people 2 would not have been included or is the FBI, are 3 federal authorities going after people that they 4 shouldn't not or are they overcharging? In the packet 5 that we have, one of General Meese's Meeses articles was 6 about the sheer volume of federal laws and federal 7 regulatory provisions that would bring people into 8 this wide net. But are they going after people 9 that they shouldn't not be going after or are they 10 going after people and overcharging them? And I 11 think that that'sis, you know, a fundamental 12 question. I agree with Ross in the sense that, 13 you know, the federal government knocking at your 14 door could be a very bad thing, yes. If it is 15 warranted, then obviously it is warranted for them 16 to go after you. And is the concern, are there 17 people out there, and quite frankly, I don't not know 18 the answer to this question, are there people out 19 there that should not be investigated, prosecuted, 20 convicted and are being, just because of what is 21 looked at as an overbroad federal law? 22 MR. GARBER: Two things: Number one 23 is, read the Stevens report when it comes out, 24 because I think that's is going to do something to 25 sort of answer that question. So in the real 0036 1 world, you see how these prosecutions are done on 2 occasion and I'll will, you know, I'll will just tell you 3 from personal experience, the answer to that 4 question is yes, that there are situations where a 5 public official's life and reputation are damaged 6 in situations that are not warranted. 7 PROFESSOR FRANZESE: And why, why 8 were the prosecutors so -9 MR. GARBER: Look, I think it'sit is a few 10 reasons. Number one is, I think good prosecutors 11 are, you know, we all want to be good at what we

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19 20 21 22 23 24 25 0037 1 opinion, there is not sufficient over site by the 2 public corruption section in Washington of how 3 public corruption prosecutions and investigations 4 are done. And so some what you have are agents 5 who see something that, in their opinion, is 6 distasteful going on in a state house or in a city 7 hall and they will use the resources at their 8 disposal, which are vast, to investigate, to see 9 whether they can do something about that 10 distasteful conduct. And again, I've have seen it in 11 my experience, where I have some public officials 12 investigated for -- again, using that vast array 13 of tools that federal prosecutors and agents have, 14 wiretaps and subpoenas and badges, which when 15 flashed to a neighbor or a colleague or a family 16 member, can itself cause a dramatic reaction. 17 PROFESSOR FRANZESE: And, Ross, to 18 clarify, when you say that law enforcement doesn'tdoes not 19 really know how politics works, what do you mean 20 by that? 21 MR. GARBER: Well, let me say this: 22 In my experience, most prosecutors, just like most 23 public officials, are terrific at what they do; 24 they'rethey are honorable, they'rethey are diligent, they'reand they are 25 careful. But I have seen prosecutors who are not 0038 1 all of those things and I think we've have seen reports 2 for of prosecutors who are not of all those things. 3 When I say that they might not understand how it 4 works, that in the course of politics, just like

do. You know, good prosecutors want to be good at what they do. And sometimes prosecutors are measured by indictments and convictions. You know, once they invest time in a case, they want to often see it bear results and results in the world of prosecution are indictments and convictions. I think there is also sort of this overlay of, in some jurisdictions, sometimes a lack of understanding and appreciation by agents and prosecutors of how politics works. And there's is no sort of entrance exam to be a public corruption prosecutor, you don't not have to pass a test about how the legislator in your jurisdiction works or how congress works. And sometimes, in my

any endeavor, there are interactions with people, there are customs, there are procedures there are -- there's is terminology that's is used, and all of that is subject to misconstruction by somebody who doesn't not understand the environment. So for 10 example, in addition to the public corruption work 11 I do, I do internal investigations on behalf of 12 companies in all sorts of contexts, in defense 13 context, in the securities context. And one of 14 the things I make sure I do when I do an internal 15 investigation, before I sit down and talk to 16 somebody, I try to make sure I understand what 17 that person does and the environment in which they 18 do it so that I can put myself in their chair so 19 that when I hear something, I can get a sense of 20 whether what I'm am hearing is really a problem or it 21 just may sound like a problem as to somebody who 22 doesn't understand their business or their 23 environment. 24 PROFESSOR FRANZESE: Would training 25 remediate some of the problem? 0039 1 MR. GARBER: I think strong training 2 and over site would remediate some of the problem. 3 I also think having clear laws and clear 4 definitions is sort of a -- is a prerequisite. 5 PROFESSOR FRANZESE: And let me ask 6 you both, what's is the reason for the proposed 7 congressional amendment, what's is going on here? 8 Ross, what do you think? 9 MR. GARBER: Well, I think the reason 10 is because some prosecutors think that when the 11 Supreme Court issued its decisions in Skilling, it 12 took away some tools for prosecution. And for, 13 you know, in my opinion, you know, perhaps that 14 could be argued. Because again, I've I have had 15 prosecutors tell me that honest services is so 16 broad that we, in some cases, don't not need to have a 17 long discussion about what the law is. If that's is 18 the approach to federal criminal prosecution, then 19 perhaps Skilling at all did have a significant 20 impact. So one is, I think there's is a perception 21 that prosecutors lost tools. I think also, there 22 is, I've have seen arguments along the lines of what 23 Matt was saying, that look, we can'tcannot trust. We

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24 can'tcannot rely on local and state prosecutors to do 25 their jobs. We can'tcannot, as Ccongress and federal 0040 1 prosecutors, we can't cannot rely on state prosecutors to 2 enforce state public corruption laws, so we need 3 to come in and enforce strong laws with respect to 4 state and public officials. You know, I'llI will say -5 and I do both sides, I'll will say an answer to that, 6 number one, I think that's is selling state 7 prosecutors short. And number two, I think once 8 you look at the landscape of federal public 9 corruption laws, I don't not think that's is a gap. I 10 don'tdo not think there'sthere is a gap. I think there are more 11 than adequate tools to investigate and prosecute 12 public corruption even at the state level. 13 PROFESSOR FRANZESE: Matt, what are 14 your thoughts? Why is cCongress endeavoring to 15 cast such a wide net? 16 MR. TROIANO: Well, I think for one 17 it probably boils down to the simple fact that 18 people want our politicians, and in the case of 19 Skilling, the corporate executives to be honest. 20 And fundamentally, the people that comprise juries 21 and there's is a regular public can identify with 22 that and hope to have that in our people that have 23 these potions of authority. So I think that 24 congress sees this decision and basically turns 25 around and says, maybe we'll we will refine it, maybe