An unusual coalition of groups has come together to
criticize the federal government’s increasing reliance
on a statute that is commonly used but little understood:
honest-services fraud.
The honest-services law, on the federal books since 1988,
broadly requires that public and corporate officials
act in the best interests of their constituents or employers.
It has become an important tool for federal prosecutors,
who used it successfully against the lobbyist Jack Abramoff
and many of his associates. It is an element of the cases
against former Gov. Rod Blagojevich of Illinois;
the former New York State Senate majority leader,
Joseph L. Bruno; and former Gov. Donald E. Siegelman of Alabama.
Prosecutors have described the law as a valuable instrument
against corruption at a time when officials have become
increasingly sophisticated at covering their tracks.
But critics say it is used too broadly, is applied inconsistently,
and too often criminalizes behavior that fails to merit the
full weight of federal prosecution. The Supreme Court
will hear three cases concerning the honest-services law
in this term, with two coming up for oral argument on Tuesday.
Opposition to use of the law has emerged from across the
political spectrum, from the United States Chamber of Commerce
and the Washington Legal Foundation on the right,
to the more left-leaning National Association of Criminal Defense Lawyers.
“Could an insincere sermon at Sunday religious services come
within the statute?” asked the chamber, half sarcastically,
in a brief to the Supreme Court.
Justice Antonin Scalia has been harshly critical of the
honest-services law, writing in a recent dissent that it has
been applied to “a staggeringly broad swath of behavior.”
He said that it “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.”
One of the two cases coming before the court next week
involves Conrad M. Black, the newspaper executive
who was convicted of defrauding his media company,
Hollinger International. He is arguing that the law
should not be applied to him because he did not
contemplate “economic harm” to Hollinger.
In the second, Bruce Weyhrauch, a former Alaska state
legislator, was convicted of failing to disclose a conflict
of interest. He had not violated state law, however,
and argues that the federal prosecution on honest-services
charges violates important principles of federalism.
The third case, to be argued later in the term, involves
Jeffrey K. Skilling, the former chief executive of Enron.
He is arguing that the honest-services law is unconstitutionally vague.
Melanie Sloan, the executive director of Citizens for Responsibility
and Ethics in Washington, a nonprofit watchdog group,
scoffed at the idea that the law is so vague that people
do not know when they have crossed the line, especially
in the three cases before the Supreme Court.
“If you go to those cases — Black, Skilling and Weyhrauch —
and look at what they did, a kindergartner knows
that they were wrong,” she said. “It’s not credible
that those guys really had no idea that what they
were doing would get them into trouble. What they
thought was that they wouldn’t get caught.”
The watchdog group’s brief to the Supreme Court called
the law “an indispensable weapon in the prosecutorial
arsenal for fighting government corruption” since it offers
“a much easier evidentiary burden” than bribery law.
Critics of the law, however, say that its vagueness is used
to bolster corruption cases in which the evidence
might be weak or the offense, while perhaps distasteful, is minor.
That is the argument of Larry Remer, a political consultant in
San Diego who faced multiple felony charges after
successfully running a bond campaign for a community college.
After the campaign was over, and the campaign fund depleted,
a video production company sent in a bill for $5,800.
The college president proposed paying the bill with
public money, ostensibly by buying outtakes from
the video company, though it is illegal to use public money
for such a campaign.
Federal prosecutors indicted Mr. Remer and the college president
in 2004 on a range of charges related to the improper
use of taxpayer money, including honest-services charges.
Mr. Remer said he was baffled by the case.
“I do understand the need to get the sleazebags,” said Mr. Remer,
whose case ended in a mistrial and a plea of guilty, along with
the college president, to misdemeanor charges of improperly
using public money, not honest-services charges. “But let’s
get them with real laws. Let’s not just say we need to get
this guy, so we’ll use this law because it can be
melted to meet our needs.”
The United States attorneys office in San Diego
declined to comment on the case.
The honest-services statute grew out of the Supreme
Court’s earlier attempts to rein in the widening use by
prosecutors of mail and wire fraud laws, said John C. Coffee,
a professor at Columbia Law School.
In a landmark 1987 decision, the Supreme Court
limited mail and wire fraud prosecutions to cases
involving tangible goods like money and property,
and not the “intangible right” of the people to good government.
Within a year, however, Congress restored the prosecutors’
flexible tool by passing the current law.
Since then, critics argue, chaos has resulted, with significant
differences across the country in the ways that the statute is interpreted.
Bennett L. Gershman, a professor at Pace University Law School,
said the power of prosecutors to overreach by focusing on a person
to prosecute and then finding a law to apply “is not only subject
to abuse under the honest-services theory, but has been abused”
in cases like those involving Mr. Siegelman, the former Alabama governor.
The charges against Mr. Siegelman, including honest-services fraud,
concerned a contribution from a businessman, Richard M. Scrushy,
to an issue campaign advocated by the governor, who
later reappointed Mr. Scrushy to a state hospital board.
The Department of Justice has conducted an investigation
of the case and found no misconduct in the prosecution;
Mr. Siegelman’s supporters say the investigation was
poorly conducted. Mr. Siegelman has appealed to the
Supreme Court, which has not decided whether to take
up the case.
Ms. Sloan, of the watchdog group, said that if prosecutors
abused the statute, “it doesn’t mean the whole statute is at fault.”
“It means the prosecutors made some bad decisions,” she said.
Richard L. Thornburgh, who was attorney general when the
honest-services law was passed, said he expected the
Supreme Court to issue “something fairly sweeping”
since it had taken on so many honest-services cases.
But, he added, “I think they can do it without doing
violence to proper law enforcement.”
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