The law prohibited a scheme to deprive another of the “intangible right of honest services,” and it was an ugly law.  Pretty laws had specific elements with defined parameters.  That way, citizens could know what was illegal to do, and judges could know what constituted a crime.  Honest services fraud was the Bruno Magli loafer of laws.

The Supreme Court decided to give it a makeover.  As Tony Mauro succinctly sums up hundreds of pages of opinions, nail buffing, hair tinting, tooth straightening, new clothing and a full body massage:

In the post-Enron case of Skilling v. U.S. and the related cases of media mogul Conrad Black and Alaska legislator Bruce Weyhrauch, the high court re-defined the “honest services” criminal fraud statute to cover only bribes and kickbacks, instead of the range of illicit activities prosecutors have used the law to punish.

Nowhere in the statute is “honest services” defined to be bribes and kickbacks, and indeed, no prosecutor ever said so.  Sure, they were included within the confines, but it covered so much more.  Anything that, in the eyes of a prosecutor, could be rhetorically argued to meet a jury’s approval as the way a corporate executive or officer should act or decide would fit the bill.  It could convert the executive suite to a convent, where its inhabitants were expected to take oaths of poverty, chastity and obedience.  Their lives would be dedicated to their corporate god, and they would have to satisfy the dogma of their prosecutor priests.

The Supremes fixed that.  They gussied up the law by limiting it to two things, bribes and kickbacks.

The reviews were mixed.  Some argued that the new law, the one written by the Supremes, was still butt-ugly because it favored corporate executives by denying prosecutors the ability to go after executives who played corporate duties for their own benefit.  Others argued that the new look put the brakes on the runaway federal train of “white collar” crime.  Still others argued that the court merely reformed an overbroad vagary to meet the normal vision of loveliness, preserving its core appearance while getting its frizzies under control.

Defining words is part of the Supreme Court’s job.  But it usually involves only trimming the edges, not a full color and mullet cut.  Had Congress meant honest services to mean only bribes and kickbacks, it would have said so.  These are not unfamiliar words to Congress, a number of whose members have some intimate familiarity with them.  No one really suspects that Congress intended the law to be limited to those two instances; Congress criminalized an idea rather than any specific acts.  That was its purpose.

What made the majority on this issue in Skilling decide to try their hand at fashioning a pretty law from an ugly one is unclear.  Perhaps they feared that Congress, upon learning that its law was held unconstitutionally vague, would just pass another one, only slightly less ugly, which would capture a bunch of corporate titans and deny them a spa treatment until the cases came before the Supremes years in the future?  To avoid that likelihood, did they decide to refine the existing law rather than give Congress another try at writing a law that would encompass anything that would appease the public’s lust for corporate blood?

It’s certainly better that they limited “honest services” to two basic, recognized, long-standing evils.  Certainly everyone knows what bribery and kickbacks are, though everyone was similarly clear before the enactment of 18 U.S.C. §1346 that they were going to get into some trouble if they went around bribing folks.  Now, it’s a law that nobody needs.

Yet, what of the rule of construction that the statutory language of a crime must provide the specific parameters of the conduct constituting the crime.  The Supremes, in the process of creating a constitutional statute out of a mutt, were constrained to blur this line.  From Tim Lynch at Cato :

The other six justices bent over backwards to “save” the law from invalidation–they ruled that the law should be narrowly interpreted.  Here is, I think, the most telling passage from the majority’s ruling:

“As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we interpret it today, will be stretched out of shape.”

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors–some risk of arbitrary prosecutions is acceptable you see. 

For many, words like “no significant risk” are sufficient to calm their fears.  Yet this new standard of unconstitutionality for vagueness suggests that as soon as the hair grows out, the make-up wears off and the law goes back to binge-eating, the pretty law in Skilling will be back to testing the limits of ugliness again.  Just as important if not more so, other ugly laws will be scrutinized under this “no significant risk” test.  Prosecutors will offer their assurances that they would never stretch a vague statute “out of shape,” and will carefully frame their square indictments and arguments going forward to fit within the round hole of the Supreme Court’s definition.

A properly drafted criminal law should provide no risk that it be stretched out of shape.  The citizenry deserve laws that have fully defined parameters, where they can tell if they’ve committed a crime rather than find out afterwards that conduct that appeared to be lawful can be twisted to fit. 

I hesitate to suggest what hairstyle will be favored by the Department of Justice in the future.  My mind’s not that agile.  But those fellows can do some gymnastics that will blow you away, and I’ve no doubt that they will come up with some ideas that nobody outside the office would suspect today.  Maybe the risk that the law will be stretched out of shape has been reduced to twenty percent.  Even ten.  Not “significant” perhaps, but hardly insignificant either.  It’s still not enough to satisfy the rigor of specifity for a constitutional criminal law.  It still gives the prosecution too much latitude to manufacture crimes as needed or wanted.

So honest services fraud is looking pretty hot right now, strutting its stuff with its new hairdo and liposuctioned belly.  How long before the hair grows out and the pot returns is hard to say, though it’s my bet that we will be seeing some curious corporate crime makeovers soon enough. 

And please note that I never resorted to lipstick on a pig in this post, despite an almost overwhelming desire to do so.