In February, Justice Antonin Scalia wrote that federal prosecutors had developed an unseemly crush on a particularly vague law, one that had “been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
Justice Scalia was writing to protest the Supreme Court’s decision not to hear an appeal from three city officials in Chicago who had been convicted of violating the law, which makes it a crime “to deprive another of the intangible right of honest services.”
If you can make sense of that phrase, you have achieved something that has so far eluded the nation’s appeals courts.
“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in New York, asked in a 2003 dissent.
The “honest services” law, Justice Scalia explained, says that “officeholders and employees owe a duty to act only in the best interests of their constituents and employers.” Carried to its logical extreme, he said, “it would seemingly cover a salaried employee’s phoning in sick to go to a ballgame.”
The Chicago officials had overseen a system that doled out jobs based on patronage and nepotism rather than merit. Such a system is neither ideal nor unusual, and the defendants were not accused of violating state criminal laws or of lining their own pockets in the process.
Justice Scalia’s dissent, which was vigorous even by his own muscular standards, seems to have had an impact. In the following months, the Supreme Court agreed to hear not one but two cases exploring the scope of the honest services law.
One involves Conrad M. Black, the newspaper executive convicted of defrauding his media company, Hollinger International. The law, as interpreted by many courts, makes it a crime for officials of private companies to put their own interests ahead of those of their employers.
(The appeals court decision affirming Mr. Black’s conviction, by Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, contained perhaps the best judicial digression of 2008. Discussing a so-called ostrich jury instruction, Judge Posner paused to say that ostriches do not in fact bury their heads in the sand. “It is pure legend and a canard on a very distinguished bird,” he wrote.)
The second case concerns a former Alaska legislator named Bruce Weyhrauch, who failed to disclose that he was soliciting work from a company with business before the Legislature. As in the Chicago case, the conduct may not have been pretty, but it did not violate a state criminal law.
Critics of the honest services law say it has two essential flaws. It allows federal prosecutors vast discretion “to go after people they don’t like or people they disagree with politically,” said Julie Rose O’Sullivan, who teaches criminal law at Georgetown.
The second problem, said George D. Brown, a specialist in government ethics at Boston College Law School, is that prosecutions of state officials under the federal law may violate fundamental principles of federalism. “It represents a federal judgment that you can’t trust the states,” Professor Brown said.
The honest services law is but one example of what Harvey A. Silverglate, a civil liberties lawyer in Boston, calls “an over-criminalization problem.” His new book, “Three Felonies a Day: How the Feds Target the Innocent,” argues that the average American professional unwittingly commits several serious crimes each day.
“Even the most intelligent and informed citizen (including lawyers and judges, for that matter),” Mr. Silverglate writes, “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.”
The Justice Department, of course, sees the matter entirely differently. In its Supreme Court brief in Mr. Black’s case, the government said the honest services law has an important role to play in attacking frauds that do not involve the loss of money or property but something intangible like candor or loyalty. In Mr. Weyhrauch’s case, the government said that requiring proof of a violation of a state law would result in a patchwork of legal standards under a single federal law.
Federal appeals courts have tried to impose limiting principles on the law.
The United States Court of Appeals for the Fifth Circuit, in New Orleans, requires proof that a state law was violated before the federal law kicks in. But the Ninth Circuit, in San Francisco, rejected that limitation in Mr. Weyhrauch’s case.
The Seventh Circuit has imposed a different limiting principle. It requires proof of “private gain,” a principle rejected by the Third Circuit, in Philadelphia. But the “private gain” limitation was of no help to the defendants in the Chicago patronage case, who apparently gained nothing. The fact that the people who got jobs gained something was enough.
As the Seventh Circuit put it in 2005, “a participant in a scheme to defraud is guilty even if he is an altruist and all the benefits of the fraud accrue to other participants.”
The bottom line, Justice Scalia said in February, is that the courts have not been able to define what separates “the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones.” The honest services law, he said, “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”
“It seems to me quite irresponsible to let the current chaos prevail,” Justice Scalia wrote. By the end of this term, we should know whether the Supreme Court can straighten things out.