Nothing in the legislative history suggests that Congress ever intended to take away a prosecutor's ability to make deals for testimony. And it is no surprise that in 35 years no court ever found the anti-bribery statute to apply to this reasonable exercise of prosecutorial discretion. This decision is simply a case of Scalia-ism taken to the extreme, beyond the bounds of common sense and in the face of established practices. I cannot believe that even Justice Scalia, the high priest of literalism, would agree with this result. As wrong as this decision is, it still cannot be taken lightly.
Prosecutors make deals with cooperating witnesses all the time.
So this decision puts tens of thousands of convictions in jeopardy. For an example, we need look no further than the conviction of Timothy McVeigh, which was based in large part on the testimony of Michael Fortier, who was allowed to plea to lesser charges in exchange for his testimony. Indeed, until this issue works its way to the Supreme Court, the potential dangers are serious. Prosecutors may feel the need to hold back on cutting deals with potential witnesses, making it tougher to convict dangerous criminals. And criminals behind bars will have a better chance than ever at overturning their convictions.