Honest Services (part 1) – a Supremely interesting concept

An anti-corruption law that has been central to the convictions of numerous public officials and corporate executives in recent years could be at risk of being struck down or narrowed after it was met with extreme skepticism by the U.S. Supreme Court yesterday.

TPM reported on the arguments before the Court and the Court’s reaction:

The Supreme Court yesterday [Tuesday, December 8, 2009] heard arguments in two separate cases related to the law — one involving [Conrad] Black, who was convicted of defrauding his company, and the other involving Bruce Weyhrauch, the Alaska GOP legislator convicted for failing to disclose that he had solicited business from an oil-services company with business before the legislature. According to the New York Times, justices from both the court’s liberal and conservative wings showed outright hostility to the law, suggesting that they saw it as overly vague.

TPM’s  link to the NYT  showed the Times reported almost universal hostility from the justices in Supreme Court arguments on Tuesday.

Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.

Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.

Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.

Deputy Solicitor General Michael R. Dreeben defended the law in both cases argued Tuesday and, according to the NYT story, was given a rough time by the justices:

Mr. Dreeben’s argument leaned heavily on judicial decisions before 1987, which he said established “the core understanding of the duty of loyalty” that the 1988 law had restored. That core, he said, includes forbidding kickbacks, bribes and “undisclosed conflicts of interest by an agent or fiduciary who takes action to further that interest.”

Mr. Dreeben’s formulation did not seem to satisfy most of the justices, on several grounds.

Justice Ruth Bader Ginsburg said that “the lower courts were massively confused” before 1987 and so could not have agreed on core concepts.

Justice Breyer said the law “covered 6,000 things,” of which the government has now “picked, perhaps randomly, three.”

Justice Antonin Scalia added that, in any event, the government’s preferred interpretation cannot be rooted in the actual text of the statute.

“You speak as though it is up to us to write the statute,” Justice Scalia told Mr. Dreeben. “That’s not our job.”

In quick succession, Chief Justice John G. Roberts Jr. and Justices Scalia and Breyer recited what they called a fundamental principle: that the public must be able to understand what a criminal law means.

“If it can’t,” Chief Justice Roberts said, “then the law is invalid.”

A similar report in the LA Times added more about the Court’s reaction:

Justice Antonin Scalia called the law “mush.” He said it was like a law that said every “bad act” was a crime and let prosecutors and judges decide what constitutes a crime without warning ordinary citizens.

Most of the other justices sounded the same theme. Justice Stephen G. Breyer and Chief Justice John G. Roberts Jr. suggested several times that the law might be unconstitutional because it was so vague…None of the nine justices spoke in defense of the law, although Justice Sonia Sotomayor said it could be used against kickbacks and bribes. “It’s illegal to take a kickback. There is nothing seemingly vague about that,” she said…

Early next year, the justices will hear a third case testing the honest-services fraud law, brought by former Enron Chief Executive Jeffrey K. Skilling.

The justices hinted that they would put off ruling on the issue until they had considered Skilling’s case, since his lawyers argued most directly that the entire law should be thrown out as too vague.

“Herein is the most dangerous power of the prosecutor; that he will pick people he think he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act  on the part of almost anyone.”

Supreme Court Justice Robert Jackson (h/t Jim Brown)