Supremes reject Wildely imaginative arguments, throw booklet at Ideal villain

Oyez, oyez, oyez, all you girlz and boyez! Last night, the Honorable the Supreme Court of the United States (supplemented by Judges from the Honorable the Less Supreme Courts) let the extortion conviction of celebrated blackmailer Laura Cheveley stand in the face of a slew of imaginative arguments presented by her gifted counsel, Beth Wilkinson.

The decision drew the approval of the audience of roughly eight hundred advocates and other Shakespearian Justice enthusiasts (who made the event the fastest sell-out (44 minutes) in the history of Shakespeare Theatre, we were told.)

(left) For the Defense: Beth Wilkinson, Esq. (right) For the Prosecution: Irv Nathan, Esq., Presiding (center, left to right) Justice Samuel Alito, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor. Also presiding but not shown: Judge Merrick B. Garland, Judge Douglas Ginsburg, Judge Brett M. Kavanaugh and Judge David S. Tatel (Photos: Kevin Allen)

You know the facts of the matter (or, if not, you can read this excellent review by Terry Ponick) but, as modified for the 2011 Shakespeare Theatre Mock Trial, they are these: the Hon. Robert Chiltern, a New Jersey Congressman revered for his probity and integrity (NOTE: this is the first time in the history of the English language that these words have appeared in this order!) was prepared to denounce on the floor of the House a proposed earmark which would have built a tunnel between New York and New Jersey under the Hudson River. Cheveley told Chilton that if he did not instead announce that he favored the project – in which she had a considerable investment – in his House speech, she would reveal that twenty years previously, he had given confidential, commercially valuable information about Boston’s “Big Dig” tunnel project to a lobbyist – and had obtained money and political support in return.

This scheme did not work out well for Mrs. Cheveley. After some agonizing, Chiltern decided to go ahead with his original plan. True to her word, Cheveley blabbed about Chiltern’s old sin to the world and the Department of Justice’s Criminal Division. But it turned out that the statute of limitations on Chiltern’s misdeed had expired (the Congressionally-established statute of limitations on Congressional bad acts being fourteen minutes). On the other hand, Cheveley was hauled before the bar of justice in short order, accused of extortion and convicted. This appeal followed.

(The remainder of the relevant facts are as set forth in the transcript of the trial below, which is bound as An Ideal Husband, Court Reporter, Oscar Wilde).

The statute under which Mrs. Cheveley was convicted, 18 U.S.C. § 873, is remarkably straightforward. “Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States,” it reads, “demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.”

On the face of it, it would appear that no amount of legal legerdemain could keep Mrs. Cheveley out of the hoosegow. But Wilkinson, a partner in Paul, Weiss, Rifkind, Wharton & Garrison LLP and a two-time winner of the Department of Justice’s highest award, contended that the conviction must fail because her client did not “demand…any money or other valuable thing.” She only demanded a Congressional speech which, Wilkinson contended, was of no value whatsoever. Wilkinson noted that Congressional speeches were hardly ever attended, even by other Members of Congress, and were available for free through the Congressional Record.

The question of whether Chiltern’s speech (notably, Cheveley had not demanded that Chiltern actually vote for the project) was a thing of value was the principal point of contention between Wilkinson and her opponent, Acting D.C. Attorney General Irv Nathan. Nathan, citing Blackstone’s Commentaries and what he contended were twenty-five other statutes, argued that one commits the crime of extortion if one subjectively believes that the thing he demands is of value, even if it is has no objective worth. This argument prompted some skepticism from the seven-member Bench. Justice Samuel Alito asked whether this meant that used lottery tickets could be a thing of value, but Nathan stuck to his guns.

But the High Court was even more skeptical of Cheveley’s argument. After all, Chief Justice Ruth Bader Ginsburg observed, Cheveley testified in the trial that she thought that it would “make her a fortune” if Chiltern could persuade Congress to fund the tunnel. (“Bet you’re sorry you let her testify,” Judge Merrick Garland observed.) But Wilkinson demurred, arguing that there was no way of telling whether Chiltern would have persuaded Congress to approve the tunnel, and thus no intrinsic value to the speech. Chiltern’s speech, Wilkinson argued, could not be “monetized”, and thus was not “a thing of value.”

Garland almost cornered Wilkinson by recalling that Cheveley had offered to surrender her evidence of Chiltern’s misbehavior if Lord Goring would marry her. Seeking to establish an equivalency between Chiltern’s speech and Goring’s agreement to marry, Garland asked Wilkinson whether a marriage was “a thing of value.” Her eyes on her husband in the audience, Wilkinson replied, “I see that my time [to speak] is up.”

Nathan, who seemed almost preternaturally self-confident on stage (as, perhaps, only an Acting Attorney General could be) also found himself obliged to sidestep some of the High Bench’s questions, usually with prepared witticisms. He did not address Chief Justice Ginsburg’s challenge to Cheveley’s apparent selective prosecution – in light of the United States’ failure to prosecute Lord Goring, who threatened to reveal Cheveley’s long-ago theft of a bracelet if she did not give up her blackmail of Chiltern, or Mr. Chiltern for attempted extortion when he tried to find something about Cheveley’s past with which he could threaten her in return. (A court may overturn a conviction if the state wrongfully prosecutes only some of those guilty. Yick Wo v. Hopkins (1886)). And when Justice Alito suggested that Cheveley was not motivated by personal gain but by a desire to improve the intellectual and cultural life of New York by increasing the number of New Jerseyites who went there, Nathan responded that the effect would actually be to depress New Yorkers, who would discover that the light at the end of the tunnel was – New Jersey.

Wilkinson raised two other points in her brief on behalf of Cheveley, but she did not give much voice to them in oral argument, and Nathan parried them easily when they were raised. Judge Brett Kavanaugh asked whether, given Chiltern’s immunity from prosecution under the statute of limitations, Cheveley had actually made “a threat of informing…against any violation of any law of the United States.” Nathan, noting that the statute of limitations could be waived, replied that Chiltern’s backroom skullduggery was a violation of the law; it was simply not prosecutable at the time absent a waiver. And Nathan himself brought up the argument in the Cheveley brief that § 873 was an unconstitutional restriction on free speech, noting that if that were true every criminal conspiracy would be legal.

Wilkinson concluded her argument by delivering a ringing appeal to the Court’s two female members, Chief Justice Ginsburg and Justice Sonia Sotomayor. After extravagantly praising the Court’s wisdom, intelligence, and judgment, Wilkinson quoted Oscar Wilde: “Women are never disarmed by compliments. Men always are.” While the effect of this oration on its intended audience was unclear, Judge Douglas Ginsburg smiled broadly and said, “thank you.”

In the end, though, Ms. Wilkinson’s wildly imaginative arguments were unpersuasive. Justice Alito, speaking for the Court, upheld the conviction because, he said, if the Court held that Congressional opinions were not things of value, it might soon be asked to hold that Judicial opinions were not things of value either.

The decision matched, by an overwhelming margin, the view of the audience as measured in the traditional red-and-blue-chips-on-the-scale-of-justice manner.

Chief Justice Ginsburg dissented, on the grounds that conviction might cause the Shakespeare Theatre to prematurely close An Ideal Husband, which through arrangement with the Department of Justice will be allowed to continue through April 16th.

 

 

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