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Criminal statutes to promote the rule of law must define the prohibited behavior in advance – not years later after the alleged crime and in an ill-fitting context.

LOS ANGELES (Catholic Online) - Recently, the Los Angeles Times and other national papers ran news stories to the effect that a federal grand jury was investigating whether the LA archdiocese had engaged in federal criminal wrongdoing for the way in which the archdiocese has handled the discipline of priests in the tragic sexual abuse scandal. The report was at once disappointing and puzzling.

The disappointment was not the fact of the scandal. Like most Catholics, the scandal to me was far more disgusting, than disappointing. For those who formally stand-in for Christ to have engaged in behavior that destroyed the trust, if not the faith, of so many innocents and their families is the deepest wound of the modern church.

Nowhere perhaps is this better understood than in Los Angeles. In 2007, Cardinal Roger Mahony and the archdiocese paid $660 million to settle civil lawsuits with 508 people alleged to be the victims of this unspeakable evil. Like most monetary awards, even that very substantial sum which practically must diminish the resources available for the charitable work of the church, could not possibly remedy the victims’ injuries – only God can do that.

No, what’s disappointing and puzzling is that the now widely circulated “rumor” of a federal grand jury wading into this already well-litigated matter gives every appearance of “piling on.” There is no allegation of new sexual abuse; indeed, the documents requested so far by the U.S. Attorney relate to 22 priests who are either dead or dismissed. What’s more, the hypothetical prosecution cannot really be said to promote greater disclosure, as the Cardinal already issued a 2004 report giving individualized detail of priests accused of abuse. Finally, under Rome’s supervision, which the Holy Father personally reasserted just months ago in his visit to America, abusers have been defrocked and a “zero-tolerance” policy is in place.

So what is the federal crime exactly? Well, leaking the investigation, itself, is one. Apparently, however, this blatant and unambiguous federal violation didn’t make the leaker even blush as the New York Times rather casually reported that its source was “a government official who requested anonymity because grand jury proceedings were secret.” Beyond this, however, the stories characterized the rumored federal crime as “the deprivation of honest services from the parishioners.” If it sounds novel, it is. There is no federal precedent for it. Zero.

The “honest services” law is used almost exclusively to prosecute the corruption of public officials like that of ex-Congressman Duke Cunningham who took $2.4 million in bribes to swing Pentagon contracts to friends or the brazen lobbyist Jack Abramoff whose fraudulent schemes sent himself, Congressman Bob Ney and others to jail. In a handful of cases, the statute has been stretched controversily to apply in a private setting, but only with evidence of kickbacks, gratuities and other financial conflicts of interest subverting a well-established fiduciary relationship, as where a doctor promotes a medical procedure or drug solely because he is a hidden investor.

Is it is possible to contemplate straining to apply the statute to diocesan supervisors who years ago were unsuccessful in stopping the harm of abusive priests? Not really. It might be different if it was a fresh case of abuse where a religious supervisor intentionally transferred an abuser knowing with reasonable certainty that further harm would result to children. It makes no sense to apply this exotic theory to old cases that have been civilly resolved. As a technical matter, any abuse within the five year limitations period has been openly reported and disciplined under the Church’s strengthen protective policies. Past mistakes in personnel transfers especially after attempted treatment and rehabilitation for a pedophilia problem, the scope of which is now, but was not earlier, grasped, are to be prayerfully regretted and compensated, as they have been. Such is not the equivalent of a federal public or corporate corruption offense meriting 20 years in the federal pen.

The rumored, extraordinary, out of context use of the “honest services” statute would be unlikely to succeed, but not before hundreds of thousands of more dollars would be siphoned from Catholic charitable activities to defend against an overreach of federal power more plausibly directed at a headline than justice by a very able, but also very late Bush-appointed U.S.Attorney who likely will be turned from office by the presidential changeover. This is especially so since the Supreme Court has been attempting to pull back on expansive interpretation of statutes like this. The Court reasoned that “a statute… that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.”

Congress never defined the term “honest services.” It is one thing for a prosecutor to use an ambiguous statute for activities that approach, but do not quite rise, to the level of either public bribery or the acceptance of illegal gratuities. It is quite another to float a far-fetched, rumored investigation contrary to the fair process due all citizens, especially a Church and its shepherd working diligently to restore personnel integrity.

Criminal statutes to promote the rule of law must define the prohibited behavior in advance – not years later after the alleged crime and in an ill-fitting context.

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Douglas W. Kmiec is the Caruso Family Chair & Professor of Constitutional Law at Pepperdine University School of Law.