Dan Rodricks: In Mosby case, even ‘men of ordinary intellect’ can understand ‘adverse financial consequences’ | COMMENTARY

Pardon me for saying so, but I don’t see what’s “fundamentally ambiguous” about the phrase “adverse financial consequences.” I get exactly what that means, and I attended neither Oxford nor Cambridge.

Lawyers for the indicted Baltimore State’s Attorney, Marilyn Mosby (Boston College Law School, 2005), claim she shouldn’t be prosecuted for perjury because of those three words in the federal law she allegedly violated. They say “adverse financial consequences” is “not a phrase with a meaning about which men of ordinary intellect could agree.”

Well, now, as a man of ordinary intellect, I cannot let that pass.

Let us parse the phrase.

“Adverse,” according to the Cambridge Dictionary, means “having a negative or harmful effect.”

“Financial” means “related to money or how money is managed.”

And “consequences” refers to “a result of a particular action or situation, often one that is bad or not convenient.”

So I pour all that into the stewpot of my brain and, even without the benefit of a degree from The Sorbonne, I come up with something that is not at all ambiguous. (For peers of ordinary intellect who might need a refresher, something that is ambiguous, according to the Cambridge Dictionary, has “more than one possible meaning.”)

But I see just one meaning: A financial loss. A fiscal setback. A monetary morass. A cash crisis. A bad ledger. A reversal of fortune. “Adverse financial consequences” means something happened that caused you or your business to lose money.

In 2020, the pandemic happened. Congress passed the CARES Act to help Americans get through it. The law said, in part, that “qualified individuals” could draw on their retirement savings funds if they suffered “adverse financial consequences” under certain conditions. There would be no 10% early withdrawal penalty, as there is under normal conditions, and easier terms for paying the federal taxes due on the withdrawn amount.

In putting out guidelines, the Internal Revenue Service was explicit. You could qualify for this relief if you experienced “adverse financial consequences” from a COVID-related reduction in income, from being furloughed or laid off, having reduced work hours, being unable to work due to lack of child care, or if you had to close or reduce the hours of your business.

That all makes sense, right? It sounds fair and prudent.

But federal prosecutors allege that Mosby, who pulled down nearly $250,000 in salary in 2020, lied when she claimed “adverse financial consequences” to draw more than $80,000 from her retirement account. She had not lost income and, furthermore, the feds say she used the money to buy two Florida homes.

I did not go to either Harvard or Yale law schools, but this all looks like a paper trail to me. So what’s the defense?

In a 61-page package of arguments and supporting documents filed in federal court this week, Mosby’s lawyers argue that the perjury charges against her should be dismissed because “adverse financial consequences” is an ambiguous phrase. It could have all kinds of meanings and, as such, they say, does not meet the legal standard required to prove perjury.

“Courts routinely dismiss charges where questions or phrases are fundamentally ambiguous and thus insufficient as a matter of law to support a charge of perjury,” Mosby’s lawyers argue, citing case law.

They say Congress failed to define “adverse financial consequences,” and the phrase could have broad meaning.

“Even if receiving their full salary,” Mosby’s side argues, “does that person experience adverse financial consequences if inflation rises, if the costs for meals are increased because their kids are at home and not receiving meals at school, if they have more food delivered because it’s risky to go shopping for groceries, if utility costs increase because everyone is working or schooling from home, or if the costs related to starting and implementing a now shuttered business venture cannot be recovered because they will no longer receive the anticipated income the business venture would have generated?”

That last reference — to “starting and implementing” a business — is interesting because it brings up the matter of two companies Mosby created in 2019.

After the existence of Mahogany Elite Consulting and Mahogany Elite Travel became known, Mosby said the companies were not yet active. She later said she had “not taken on a single client for these companies, nor have I taken in any money.” But, in a media appearance in January, her lead attorney, A. Scott Bolden, suggested that Mosby’s businesses had been adversely affected by the pandemic, contradicting what his client had said about them.

Of course, the same attorney claimed “prosecutorial vindictiveness” against Mosby, saying the investigation and indictment were driven by “malicious personal, political, and even racial animus on the part of the prosecutors.”

That didn’t work. A judge denied a motion to dismiss the charges on those grounds in April.

Now the Mosby legal team is back with the claim of ambiguity in the language of the law she violated.

“The fundamental ambiguity of the term ‘adverse financial consequences,’” they say, “makes it insufficient as a matter of law to support a charge of perjury.”

I do not have a doctorate of jurisprudence, but I’d be surprised if a federal judge would agree with that. I mean, if a man of ordinary intellect, such as myself, understands what “adverse financial consequences” means, certainly a federal judge can. You’d think a graduate of Boston College Law School would, too.