No Comment — December 9, 2009, 5:25 pm

Supreme Court Expresses Unease Over Honest Services Prosecutions

The Supreme Court heard a group of appeals on Monday that included convicted press baron Conrad Black, convicted Enron CEO Jeffrey Skilling, and Bruce Weyrauch, an Alaskan legislator facing a corruption charge. The cases have united a broad coalition against the Justice Department: the U.S. Chamber of Commerce joins hands with the National Association of Criminal Defense Lawyers, for instance. Although the cases raise fundamental questions about the fairness and judgment of Justice Department prosecutors, they are likely to be resolved on a highly technical question: is the honest services fraud statute unconstitutionally vague? Congress adopted the statute in 1988 to reverse a Supreme Court decision that insisted on a very narrow reading of the fraud statute. The new language, codified at 18 U.S.C. § 1346, is simple: “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

Normally the Supreme Court is extremely reluctant to hold that a statute is too vague to be enforced. The test is whether a person of normal intelligence can understand and apply it. The Justice Department rose valiantly to the statute’s defense at oral argument, insisting that the language was plain and easily understood and applied. But things didn’t go well for the government on Monday. Justice Antonin Scalia, who has now repeatedly gone out of his way to express his contempt for the statute and the way it has been enforced by the Justice Department, came on like a freight train. He called the statute legal “mush” and attacked the interpretations that the Justice Department put on it, saying the Justice Department didn’t understand the law and “I don’t know how you expect the average citizen to.” Justice Breyer suggested that, as the Justice Department has construed the statute, fully “140 out of 150 million” people in the American workforce would be criminals. Justice Kennedy called the statute “a problem.” No sympathetic voices were heard for the Justice Department.

While argument focused on questions of statutory interpretation, it was also a frank expression of no confidence in the Justice Department’s management of public-integrity cases. Federal prosecutors have a solid record of bringing home convictions in such cases. But courts have increasingly expressed displeasure and occasionally anger that the cases were brought in the first place. The Seventh Circuit took the extraordinary step of ordering the release of a convicted Wisconsin public official at oral argument, adding that the government’s case may have gotten a conviction, but it never should have been allowed to go to trial. Prosecutions in Pittsburgh and Maine were also thrown out of court. And the Public Integrity Section’s highest profile case, the prosecution of Senator Ted Stevens, disintegrated after serious misconduct by prosecutors was revealed. What rang through the oral argument in the Supreme Court was an unmistakable concern that federal prosecutors handling public-integrity cases were spinning out of control.

While the Supreme Court reviewed a series of cases joined together, their ruling may affect dozens more. Alabama Governor Don E. Siegelman is the most prominent target of a federal honest services fraud prosecution so far, and the prosecution of his case remains under a cloud of accusations now raised by attorneys general across the United States, of gross misconduct by the Justice Department. Mississippi’s Paul Minor, and Georgia’s Charles Walker are other cases in which Justice Department lawyers achieved honest services fraud convictions that are now under attack.

If the Court rules as oral argument suggests they will, their ruling is likely to have far-reaching consequences for the Justice Department as well. It will have to undertake a review of dozens of cases in which convictions were secured under the statute, and it will likely have to abandon a large number of those convictions. Patrick Fitzgerald, the U.S. Attorney in Chicago, signaled his understanding of the dilemma by rushing to revise his indictment of former Illinois Governor Rod Blagojevich as the Court took up the issue.

The case comes at a particularly difficult time for the Justice Department. Leading figures in the Public Integrity Section, which handles honest services fraud cases, are now themselves the target of a criminal probe initiated by Judge Emmet Sullivan based on his determination that they engaged in serious misconduct in the Stevens trial. The section’s head, William M. Welch II, was forced to resign in October.

Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada



September 2014

Israel and Palestine

= Subscribers only.
Sign in here.
Subscribe here.

Washington Is Burning

= Subscribers only.
Sign in here.
Subscribe here.

On Free Will

= Subscribers only.
Sign in here.
Subscribe here.

They Were Awake

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content


Arab artists take up — and look past — regional politics
“When everyday life regularly throws up images of terror and drama and the technological sublime, how can a photographer compete?”
“Qalandia 2087, 2009,” by Wafa Hourani
“There was torture by the previous regime and by the current Iraqi regime,” Dr. Amin said. “Torture by our Kurdish government, torture by Syrians, torture by the U.S.”
Visiting His Own Grave © Anadolu Agency/Getty Images
The Tale of the Tape·

= Subscribers only.
Sign in here.
Subscribe here.

“Heroin isn’t the weakness Art Pepper submits to; it’s the passion he revels in.”
Photograph (detail) © Laurie Pepper
The Soft-Kill Solution·

= Subscribers only.
Sign in here.
Subscribe here.

"Policymakers, recognizing the growing influence of civil disobedience and riots on the direction of the nation, had already begun turning to science for a response."
Illustration by Richard Mia
New Books
New Books·

= Subscribers only.
Sign in here.
Subscribe here.

“Almond insists that watching football does more than feed an appetite for violence. It’s a kind of modern-day human sacrifice, and it makes us more likely to go to war.”
Photograph by Harold Edgerton

Chance that a movie script copyrighted in the U.S. before 1925 was written by a woman:

1 in 2

Engineers funded by the United States military were working on electrical brain implants that will enable the creation of remote-controlled sharks.

Malaysian police were seeking fifteen people who appeared in an online video of the Malaysia-International Nude Sports Games 2014 Extravaganza, and Spanish police fined six Swiss tourists conducting an orgy in the back of a moving van for not wearing their seatbelts.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!


In Praise of Idleness


I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today