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Wednesday, December 9, 2009

Honest Services Statute In Jeopardy at Supreme Court

The Supreme Court on Tuesday heard two cases (one involving newspaperman Conrad Black, the other involving some obscure Alaska state legislator) raising the issue of the use of the federal "honest services" statute in criminal prosecutions.  

Although the Deputy Solicitor General Michael Dreeben argued that previous case law limited the scope of the statute, in essence offering the argument that the moderation of case precedent offered safety from potential abuse, here's the problem: as a practical matter, the scope of the statute is determined first by the Department of Justice when it selects cases to bring and people to go after, and thereafter only by judges who determine whether to throw out indictments or convictions.   There can be no assurance -- and in fact there is none -- that the concepts of benevolence and moderation implicit in Dreeben's argument will be shared by Justice Department prosecutors, or judges.    There is always a danger in a law whose fairness (if not its efficacy) depends on the benevolence of its enforcer.   The Supreme Court seems to recognize this.

Here's a brief but interesting article which contains further useful links.

Brief question:  If the honest services statute gets stricken, how will the government go after corrupt politicians?   Mail fraud statute, perhaps?   Or does Congress take a crack at revising the honest services statute?  (That may be like asking the fox to guard the chickens.)

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