When the Supreme Court refused to grant cert in Sorich v. US, Justice Scalia wrote a scathing dissent, questioning how the court could pass up the opportunity to dissect one of the most incomprehensibly vague and yet pervasive criminal law amendments ever enacted. Under a scheme or artifice to defraud, 18 U. S. C. §1346, Congress threw in, “to deprive another of the intangible right of honest services.”
The intangible right of honest services. To paraphrase Justice Scalia, “huh?” It’s original intent, to use as a weapon against dishonest politicians and corporate titans, who abused their positions for personal gain, would appear to be well intended, but its language, and subsequent employment as the newest darling of the prosecution, has reduced it to a nightmare. This term, the Supremes have granted cert to two cases involving this crime.
In his Sidebar Column, Adam Liptak at the New York Times characterizes the problem:
Critics of the honest services law say it has two essential flaws. It allows federal prosecutors vast discretion “to go after people they don’t like or people they disagree with politically,” said Julie Rose O’Sullivan, who teaches criminal law at Georgetown.
The second problem, said George D. Brown, a specialist in government ethics at Boston College Law School, is that prosecutions of state officials under the federal law may violate fundamental principles of federalism. “It represents a federal judgment that you can’t trust the states,” Professor Brown said.
While not untrue, Liptak’s explanation of the flaws fails miserably to get to the heart of the problem. The issue is that it covers everything and everyone who is in any way connected to any business or government entity of any stripe. It presumes that there’s a purity of motive, an absolute altruism, that directs the conduct of each potential target, and that the failure to perform one’s function consistent with the government’s view of purity is, in itself, a crime. It requires neither profit nor detriment from the purported wrong, though this is in conflict amongst the circuits.
The United States Court of Appeals for the Fifth Circuit, in New Orleans, requires proof that a state law was violated before the federal law kicks in. But the Ninth Circuit, in San Francisco, that limitation in Mr. Weyhrauch’s case.
The Seventh Circuit has imposed a different limiting principle. It requires proof of “private gain,” a principle rejected by the Third Circuit, in Philadelphia. But the “private gain” limitation was of no help to the defendants in the Chicago patronage case, who apparently gained nothing. The fact that the people who got jobs gained something was enough.
The product of these conflicts is obvious. If courts can’t decide what constitutes a violation of the law, how can any individual know when he oversteps the bounds?
The gist of the problem is that people, whether politicians or corporate executives, act with dual and conflicting motives. On the one hand, they are required to fulfill their duty to their constituents or their employers, whatever that duty may be. On the other hand, they have, to some greater or lesser extent, a self-interest at stake. For corporate CEOs, it means obtaining a ridiculously high salary and bonus package. For politicians, it means courting votes to maintain their position of power. Sometimes, the motives are in sync, and even though conduct may not square with some absolutist view of ethics, it happens that self-serving purposes also happen inure to the benefit of others, or at least cause no harm at all to those to whom this duty of honest services is due. Yet, with an artfully crafted indictment, all of this can be flagrantly illegal.
To a large extent, the scope of this law is limited only by the imagination and drafting abilities of the prosecutor. It takes little effort to craft an allegation of improper motive ascribed to an act to bring it within the broad and amorphous reach of the law. Even for the politician, who is presented with the option of voting for or against a law, the decision to vote in any particular direction would be used to prove a crime if a campaign contributor benefited from his decision. And yet, isn’t the decision of which way to vote peculiarly within the purview of the elected official? This suggest that there is a right or wrong way to vote, and that the politician voting his beliefs, but the “wrong way,” could expose himself to prosecution. Forget the obvious detail that the contributor supports the politician because they share similar beliefs.
This led Scalia to complain:
It’s about time that the Supreme started earning their pay on this one. And for once, it looks pretty good that they will come out on the right side. If only they were as deeply concerned about overcriminalization for the rest of us.
The gist of the problem is that people, whether politicians or corporate executives, act with dual and conflicting motives. On the one hand, they are required to fulfill their duty to their constituents or their employers, whatever that duty may be. On the other hand, they have, to some greater or lesser extent, a self-interest at stake. For corporate CEOs, it means obtaining a ridiculously high salary and bonus package. For politicians, it means courting votes to maintain their position of power. Sometimes, the motives are in sync, and even though conduct may not square with some absolutist view of ethics, it happens that self-serving purposes also happen inure to the benefit of others, or at least cause no harm at all to those to whom this duty of honest services is due. Yet, with an artfully crafted indictment, all of this can be flagrantly illegal.
To a large extent, the scope of this law is limited only by the imagination and drafting abilities of the prosecutor. It takes little effort to craft an allegation of improper motive ascribed to an act to bring it within the broad and amorphous reach of the law. Even for the politician, who is presented with the option of voting for or against a law, the decision to vote in any particular direction would be used to prove a crime if a campaign contributor benefited from his decision. And yet, isn’t the decision of which way to vote peculiarly within the purview of the elected official? This suggest that there is a right or wrong way to vote, and that the politician voting his beliefs, but the “wrong way,” could expose himself to prosecution. Forget the obvious detail that the contributor supports the politician because they share similar beliefs.
This led Scalia to complain:
The bottom line, Justice Scalia said in February, is that the courts have not been able to define what separates “the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones.” The honest services law, he said, “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”While cynics may find Justice Scalia’s sudden concern for the welfare of criminal defendants who happen to be corporate CEOs somewhat disingenuous, noting perhaps that the “new professionalism” plays no role in assuaging his issues, the fact remains that honest services is a disaster to defend because of its utter lack of meaning and parameters. It’s just a bad, meaningless law that covers whatever a prosecutor wants it to cover.
It’s about time that the Supreme started earning their pay on this one. And for once, it looks pretty good that they will come out on the right side. If only they were as deeply concerned about overcriminalization for the rest of us.
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Eh, I think the rest of us will benefit as well if the Supreme Court throws this out. These things always start with corrupt politicians and psychopathic CEOs (and drug kingpins and child molesters and terrorists) but prosecutors usually discover it’s a lot easier to rack up the wins by prosecuting small business owners, political protestors, and people who annoy their boss’s friends.
Ironically, it looks like one COULD even use this law to go after an agency that misused the law to go after people they didn’t like. After all, isn’t prosecuting someone simply because of political differences a failure to provide honest services?
Exactly. Honest services are subjective, whatever is in the best interests of the public/constituent, which is entirely a matter of who’s making the call. It’s a legal quagmire, without any limitations.
I suppose this means that a grand jury indicted on the basis of intangible evidence that a crime had been committed.