The Demise of Honest Services
Last week three important matters before the Supreme Court signaled the demise of honest services mail fraud found at 18 U.S.C. § 1346. That law defines honest-services mail and wire fraud as "a scheme or artifice to deprive another of the intangible right of honest services." Honest services mail fraud was adopted by Congress 21 years ago in an effort to combat political corruption, but it has allowed federal prosecutors to indict and convict folks of any manner of conduct, criminal or not.
As Justice Scalia recently remarked in dissenting from a denial of a cert petition some months ago, "Without some coherent limiting principle to define what 'the intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.''
Last Tuesday, the Supreme Court heard oral argument on two cases that did not explicitly raise the issue of the constitutionality of the honest services mail fraud. Scotusblog has an excellent critique of the arguments in the Conrad Black and the Bruce Weyrauch cases and the oral argument transcripts can be found here and here.
However, as Scotusblog reports, on Friday, attorneys for Jeff Skilling explicitly raised the issue arguing that 1346 is unconstitutionally vague. The Skilling merits brief is here. See p. 38.
A detailed read of the oral arguments last week portends the inevitable falling of this statute that has been an essential weapon in combating public corruption, but that has also been a source of abuse and over-reaching by “headline-grabbing” prosecutors.
