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Thursday, October 15, 2009

Justice Department on Honest Services Theory

The Department of Justice has some interesting thoughts on the use and boundaries of the theory of deprivation of "honest services" in its Supreme Court brief opposing jailed former media baron Conrad Black's appeal of his criminal conviction.  (I suggest going to the ABA website at for all the briefs, including from amici, in this case.   If you have less time, see this Dan Slater article in the Wall Street Journal with some background on a few current cases awaiting trial.)

In short, Justice argues that the honest services statute (which is Section 1346 of Title 18, which modifies the mail fraud statute at Section 1341) covers a range of conduct considerably narrower than the current popular perception, and gives a good argument -- if not necessarily persuasive -- as to why some judges' concerns (especially Supreme Court Justice Antonin Scalia's) are overblown.   Justice cites three court decisions constraining the honest services theory and overturning criminal convictions (see pp. 39-40 of the brief).   However, the fact that those circuit court decisions were able to be cited illustrates the problem Scalia and others have:  those cases were brought, and ultimately-exonerated individuals were prosecuted and convicted, because of the vagueness of the statute.     These judges -- and other commentators including law professors -- correctly identify and fear the potential for abuse.

The honest services theory seeks to proscribe breaches of a duty of loyalty, committed with an intent to deceive and involving materiality.   The plain language of the statute is as vague as it is specific.   But the real problem we should keep our focus on is the statute's elasticity (my term); in other words, the statute's susceptibility to being used by a creative prosecutor to cover a wide range of conduct and call it "criminal." 

This is a situation calling out for Congress to act.   For a body which loves to produce reams of proposed legislation (most of which goes to the shredder), this group can put together as complex a bill as necessary to specify exactly what is a crime, and what is not. 

Until then, innocent people will have only the protection of the people at Justice who are charged with making investigative and prosecutorial decisions.   The law itself will not offer the protection.  A law which depends on the benevolence of its enforcers to be protective will be the first law to be put to harm's use when the benevolence is replaced by malevolence.   As a nation of laws and not of men, such a law is fatally flawed.    Such a law should be carefully amended -- or repealed altogether.   

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