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.
The honest services law, enacted in 1988, makes it a crime “to deprive another of the intangible right of honest services.” Prosecutors frequently use it against politicians or corporate executives believed to have defrauded their constituents or employers. Jack Abramoff, former congressman William Jefferson, former Enron CEO Jeff Skilling, and newspaper magnate Conrad Black all have been convicted, at least in part, of honest services fraud in the last few years.
The Supreme Court yesterday heard arguments in two separate cases related to the law — one involving 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.
Reports the Times:
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.
If the law goes down, pretty much anyone else convicted of honest services fraud could benefit. “There will be a rush to the courthouse,” Stan Brand, a veteran Washington ethics lawyer, told TPMmuckraker. Even those like Abramoff and Jefferson who were convicted on multiple counts, honest-services fraud among them, could get their sentences shortened. “Where you’ve got multiple counts, they’re not gonna get a pass, but they could get a reduction,” Brand said.
And Jonathan Turley told the New Orleans Times-Picayune that action by the Supreme Court “could potentially have a large impact,” on the Jefferson case.
Brand, reached in Indianapolis where’s he’s attending baseball’s winter meetings (the Granderson trade is the big news, he said), noted that former Maryland governor Marvin Mandel, and former Utah congressman George Hansen both had their corruption convictions overturned after the courts narrowed the laws — mail fraud, and false statements, respectively — on which they were convicted.
In a sign of how the issue is already shaking up corruption cases, prosecutors working on the case of former Illinois governor Rod Blagojevich indicated earlier this week that they planned to re-file their indictment against him, this time with no reference to honest services fraud, because of the chance that the Supreme Court might strike down or narrow the law. Blago was charged in connection to an alleged scheme to sell Barack Obama’s Senate seat, as well as other pay-for-play allegations.
Nonetheless, Brand, a longtime defense lawyer, said that if the law is indeed struck down, it won’t be a major blow for anti-corruption efforts. He said that prosecutors still would have numerous other charges at their disposal, including bribery, gratuity, conflict of interest, and false statements, among others.
“These guys have so many arrows in their quiver,” Brand said.
Late Update: We should have noted that former Alabama governor Don Siegelman, too, was convicted of honest services fraud, among other counts. So action from the Supreme Court could affect his case as well.
