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Honest Services


Both Adam Liptak and Lyle Denniston see, after Tuesday’s oral arguments, a strong cross-ideological consensus (excluding John Paul Stevens) that the “honest services” statute often used to prosecute corruption cases is unconstitutional. My first reaction, admittedly, is to ponder the cynicism of the Court’s right flank; it’s hard to imagine Roberts and Alito, in particular, caring in the least about vague statutory language or the arbitrary application of criminal statutes in cases where the defendants weren’t frequently rich white men in suits.

Regardless of their motivation, though, and despite the fact that I have less than no sympathy for Conrad Black, I have to say that the arguments that the statute is constitutionally vague strike me as quite convincing:

Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.

Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.

Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.

See also Scott Horton, who notes some of the highly flimsy prosecutions brought under the statue. The whole area of law is an object lesson of how vague statutory language is an open invitation to prosecutorial abuse, and the fact that some bad people have been caught in the web doesn’t change that. The government may need additional tools to prosecute corruption (although note that Joe Bruno was convicted for good old-fashioned mail and wire fraud, not on the vaguer charges), but the statutory language really does need to be more specific.

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