Supreme Court takes up 'honest services,' or anti-corruption, law
The Supreme Court will hear arguments Tuesday in two cases that explore whether a federal 'honest services' law is too vague. A third case, to be heard later, involves the anti-corruption methods used in convicting former Enron chief executive Jeffrey Skilling.
The US Supreme Court has agreed to hear three cases in its current term examining a controversial federal statute that makes it a crime "to deprive another of the intangible right of honest services."Skip to next paragraph
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The law is a powerful weapon in the arsenal of prosecutors seeking to root out all forms of public and private corruption. But the statute, critics say, fails to give fair warning of precisely which conduct violates the law.
On Tuesday, two of the cases arrive at the high court for oral argument, and the justices will confront a murky issue: What is an intangible right of honest services, and when does its absence rise to the level of a federal crime?
It is not exactly a new question. In 1987, the Supreme Court struck down a similar "honest services" law, saying the outer boundaries of the statute were too ambiguous. The court said that federal prosecutors seeking to prove mail fraud would have to show a deprivation of actual physical property. In other words, it wasn't enough to provide evidence that a defendant had infringed "the intangible right of the citizenry to good government."
The court declared: "If Congress desires to go further, it must speak more clearly than it has."
Congress responded with the current statute, a 28-word law that retains all the ambiguity of the original.
Thus the stage is set for the justices to decide whether the broadly worded law complies with due process and other safeguards or is too vague to withstand constitutional scrutiny.
Prosecutors accused Mr. Black and his colleagues of defrauding investors by diverting corporate funds for personal use. They told the jury that Black and others received personal payments through a series of phony "non-compete" agreements related to the sale of various newspapers.
According to Black's lawyers, the non-compete agreements were not phony, but were rather a creative way to channel legitimate management fees to top corporate officials to obtain certain advantageous tax benefits in Canada. No theft occurred, Black's lawyers say.
It doesn't matter, government lawyers counter. In addition to the theft allegation, prosecutors charged that Black's conduct violated Delaware corporate law by breaching his fiduciary duty of "loyalty" to the corporation.
That is the essence of the dispute.
"No one who is not a federal prosecutor believes that a deprivation of 'honest services,' by itself, adequately and clearly describes an offense with the specificity required by the Constitution," writes Washington lawyer Miguel Estrada in Black's brief to the court.