Paul Clement began his final day as solicitor general Monday morning at the Supreme Court, awaiting the Court's traditional farewell from the bench for those in his position.
But before the fond adieu came, the Court announced three opinions -- all of them losses for Clement as the government's top advocate before the Court.
And two of those were pro-defendant decisions that will make money-laundering prosecutions more difficult -- proving, if any proof was needed, that a conservative Supreme Court does not always favor the government in criminal cases. One decision was written by Justice Clarence Thomas and the other by Justice Antonin Scalia -- the Court's most conservative members.
"Their commitment to legal and structural principles trump any anti-defendant instincts that some pundits assume they have," Ohio State University law professor Douglas Berman wrote on his Sentencing Law and Policy blog. "Anyone inclined to make quick or broad assertions about jurisprudential and political trends in the Roberts Court needs to take a close look at all the unpredictable stuff going on throughout the Court's criminal docket."
In Cuellar v. United States, Thomas wrote for a unanimous Court that the mere fact that money being transported across U.S. borders was concealed does not constitute a violation of the money-laundering statute. The government has to prove additionally that the concealment was designed to hide the source, ownership, or control of the money, the Court said.
In United States v. Santos, a divided 5-4 Court led by Scalia gave a narrow interpretation of the money-laundering law's prohibition against the use of "proceeds" of criminal activities for various purposes. Giving a ringing endorsement to the rule of lenity, Scalia said the ambiguous word "proceeds" should be interpreted to mean "profits," not "receipts." "The tie must go to the defendant," Scalia said.
Justices Stephen Breyer, Samuel Alito Jr., Anthony Kennedy and Chief Justice John Roberts Jr. dissented. Justice John Paul Stevens wrote a compromise concurring opinion that may have the effect of softening the blow for the government.
Taken together, says Sidley Austin partner Jeffrey Green, the decisions "significantly pare back the reach and scope of the money-laundering statute, and reinvigorate an old and glorious defense -- the rule of lenity." Green, who wrote a brief for the National Association of Criminal Defense Lawyers in Cuellar, said the rulings vindicate the defense bar's "long and loud criticisms that money-laundering charges were being tacked on, added on and threatened in order to induce pleas and rack up higher sentences."
Green said the Cuellar decision may also impact prosecutions under the similarly worded Foreign Corrupt Practices Act. Prosecutors, Green says, "will now have a harder time tacking on -- or threatening to tack on -- money-laundering charges in conjunction with FCPA violations."
The third decision Monday was announced by Justice Samuel Alito Jr. In Richlin Security Service Co. v. Chertoff the Court said the cost of paralegals can be reimbursed, along with lawyer fees, in cases covered by the Equal Access to Justice Act. It was a victory for paralegals, but not for the government, which argued that the words of the law did not include paralegals.
Then, after new members of the Supreme Court bar were sworn in, Roberts offered Clement the awaited thanks. He asked Clement to come to the podium.
Noting Clement's service in the position since 2004, Roberts said, "The Court recognizes the significant responsibilities that were placed on him to represent the government of the United States before this Court and to perform other important functions on behalf of the executive branch. On behalf of my colleagues, I thank you, General Clement, for a job well done. You have our sincere appreciation and best wishes for the future."
Clement did not respond. He announced last week he will teach at Georgetown University Law Center in the fall and will consider private sector law firm possibilities.