Supreme Court critical of ‘honest services fraud’ law


The Supreme Court gave a highly skeptical hearing Tuesday to government lawyers defending the key anti-corruption law that makes it a crime for officials to deprive the public of their “honest services.”

In recent years, prosecutors have used the law to convict politicians, lobbyists and corporate executives of fraud, even when there is no proof that they pocketed money or took a bribe. But the law appeared to be in danger of being struck down entirely -- or scaled back to cover only kickbacks and bribes.

Throughout the two-hour arguments, the justices took turns suggesting that the law was too vague and open-ended and that it failed to spell out what was a crime.


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.

“A citizen is supposed to be able to understand the criminal law,” Breyer said, yet it was unclear what the law in question branded as a crime.

The justices heard arguments in two cases Tuesday. In the first, former newspaper mogul Conrad Black is challenging a criminal conviction that rested in part on a charge that he defrauded his company, Hollinger International. In the second, the justices focused on Bruce Weyhrauch, a former Republican legislator in Alaska who was prosecuted for fraud because he sought work with an oil services firm before leaving office.

But most of the time, the justices ignored the facts of those cases and debated whether the law itself could stand. 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.

In the case of Weyhrauch, however, he did no work for the oil services firm and received no money. Moreover, the state did not require its part-time legislators to disclose contacts with outside employers.


His lawyer, Donald Ayer, argued that it was unfair to bring criminal charges against the former legislator for failing to disclose a potential conflict of interest that he was not obliged to disclose.

If the court strikes down the law, its decision could upset or complicate a whole series of corruption cases -- including the pending prosecution of former Illinois Gov. Rod R. Blagojevich for allegedly attempting to sell the Senate seat vacated by President Obama.

Defending the law, Deputy Solicitor Gen. Michael R. Dreeben said that it was crucial for prosecuting officials who use their public positions to scheme for their personal benefit. Throwing out the measure would devastate “a core area of public corruption” law, he said.

Even if the court were to throw out the law, it would not necessarily mean Black would go free. Prosecutors presented evidence that he had schemed to take $5.5 million in personal fees while he was chief executive of Hollinger. Some of those charges might stand, even if part of his conviction were overturned.

The same could be true of the Blagojevich case. The U.S. attorney’s office in Chicago said that it planned to press ahead with charges that the former governor had offered to sell the vacant Senate seat in exchange for campaign contributions or other benefits. That exchange of money or favors could be prosecuted without the honest-services law.

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.

Such a decision would send the matter back to Congress, where lawmakers may try to craft a more precise statute.