Justice Neil Gorsuch’s concurrence in the case of Snyder v. United States, an ode to the “ancient rule of lenity,” runs a mere two paragraphs. The case posed the question of whether federal bribery law bars the gifting of gratuities to public officials after an official act. By a six to three margin, the justices found that regulating such tokens of appreciation is the purview of state and local government. Only Justice Gorsuch reaches the constitutional quick. 

The case concerned the onetime mayor of Portage, Indiana, James Snyder. Contracts were awarded to a trucking company, and a year later that outfit cut the mayor a check for $13,000. He claimed it was for consulting services. A jury convicted him of accepting an illegal gratuity. Justice Gorsuch joined his conservative colleagues to find that a “fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant’s charged conduct.”

The Legal Information Institute explains that the ancient principle of lenity mandates that “when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant.” Courts can convict only on the basis of clarity. Justice Gorsuch writes that “lenity may sometimes, as it does today, go unnamed. It may be deployed under other guises, too. ‘Fair notice’ or ‘fair warning’ are especially familiar masks.”

The Coloradan teaches that lenity inspired the court here to decide the case “not for the prosecutor but for the presumptively free individual.” He declares “make no mistake: Whatever the label, lenity is what’s at work behind today’s decision, just as it is in so many others. Rightly so.” Justice Gorsuch’s concurrence runs three paragraphs, though he has become something of a lion of lenity, marbling his opinions over the years with reference to the rule.

Not that Justice Gorsuch is far from the first jurist to mark lenity as a bulwark. In 1820, Chief Justice Marshall wrote that the “rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals.” It was first conceived by English judges to limit Parliament. Our Supreme Court has held that “in our constitutional order, a vague law is no law at all.” 

In March, our A.R. Hoffman reported that President Trump invoked lenity in respect of Special Counsel Jack Smith’s Mar-a-Lago prosecution over classified documents. Trump alleges “grave infirmities” in the Espionage Act’s wording and contends that “there was no consensus meaning attributed to the problematic language.” Mr. Smith argued that there was “nothing vague” about the charges, which he describes as “clear.”

Yet his judgment on that head is open to question. It was on Mr. Smith’s watch at Justice that a unanimous Supreme Court cleared the accused in another corruption case. That was McDonell v. United States, requiring a quid quo pro for a bribery conviction. Now, Justice Gorsuch’s love of lenity could prompt a closer look at Mr. Smith’s January 6 charges against Trump, especially those that derive from the Sarbanes-Oxley Act. 

We certainly hope so. The bitterness and political nature of the current legal campaign against the veterans of the Trump administration strike us as a circumstance for which the ancients envisioned lenity. The rule of lenity works to curb the power of prosecutors by tethering them to text. Its spirit is flouted when, as in the Sarbanes-Oxley case, Fischer v. United States, statues are stretched to secure convictions. Lenity may have found its moment.