Justices skeptical of law dealing in 'honest services'

Federal law was used to indict former Juneau representative Bruce Weyhrauch

Posted: Thursday, December 10, 2009

WASHINGTON - A federal law that makes it a crime to deprive the public or one's employer of "honest services" is a favorite of prosecutors on the hunt for corrupt politicians and self-dealing corporate honchos.

But it found few admirers Tuesday at the Supreme Court.

From one end of the mahogany bench to the other, and across the court's notable ideological divide, justices took turns criticizing the 1988 law that makes it a crime to "deprive another of the intangible right of honest services."

The most frequent complaint was that is it so vague that it is impossible for the average person to know what is being made illegal.

"Perhaps there are 150 million workers in the United States," Justice Stephen Breyer told the government lawyer defending the law. "I think possibly 140 (million) of them would flunk your test."

By the end of two hours of oral arguments, the decision seemed to be how the court could limit the reach of the law, or whether to simply declare it unconstitutionally vague.

Justice Antonin Scalia, the law's chief critic, said he did not "have the heart" to try to find a way to save the law. "Why should I turn somersaults," he asked, to help render constitutional a law he considers "inherently vague."

To decide the honest-services law, the court has taken three cases, including one from convicted newspaper tycoon Conrad Black. He argues that he should not have been convicted without the government proving that his unusual pay arrangement cheated the company he once headed.

Black's case was heard Tuesday along with that of former Alaska state representative Bruce Weyhrauch.

Weyhrauch says he should not be the subject of federal prosecution, because no state law required him to disclose that he was looking for legal work with an oil services firm at the same time the company was lobbying him on a tax bill.

In the spring, the court will hear an appeal from former Enron chief executive Jeffrey Skilling, who contends that the government needed to prove he was trying to line his own pockets with the fraudulent accounting scheme that brought down the giant company. Skilling says his actions were to save the company.

The cases raise distinct issues with which the court could limit the law. But Black's attorney, Miguel Estrada, told the justices there was no "elegant out to the morass that the lower courts have been confronting," and that as "an essential matter, this statute cannot be saved."

Deputy Solicitor General Michael Dreeben said the history of the law showed that prosecutors have not abused the malleable language in the law.

"The statute covers bribes, kickbacks, and undisclosed conflicts of interest by an agent or fiduciary who takes action to further that interest," he said.

The honest-services language was enacted by Congress in 1988, after a Supreme Court decision that limited the mail fraud statute, saying it "does not refer to the intangible right of the citizenry to good government." The ruling said if Congress intended otherwise, "it must speak more clearly than it has."

Declaring the statute unconstitutional would raise "a very good question," about what should happen to those who were convicted under its provisions, said Andrew Wise, a Washington lawyer who specializes in white-collar crime.

Those with active appeals of their convictions could use the decision to their advantage, he said.

But even those with final judgments "could have pretty good grounds to go back to the trial court and say, 'My conviction has to be overturned because what I was convicted of was not a crime,'" Wise said.

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