Supreme Court To Take Up Honest-Services Fraud Tuesday

The Supreme Court takes up two of its three honest-services fraud cases tomorrow.

The most prominent case — that of one Jeffrey Skilling — won’t be heard until 2010.

But in hearing the others, it will begin to address what has become quite the controversial law.

John Schwartz of The New York Times: The honest-services law, on the federal books since 1988, broadly requires that public and corporate officials act in the best interests of their constituents or employers.

It has become an important tool for federal prosecutors, who used it successfully against the lobbyist Jack Abramoff and many of his associates. It is an element of the cases against former Gov. Rod Blagojevich of Illinois; the former New York State Senate majority leader, Joseph L. Bruno; and former Gov. Donald E. Siegelman of Alabama.

Prosecutors says it is invaluable to fight corruption; critics say it is used too broadly and applied inconsistently.

The honest-services law developed after the Supreme Court reined in too broad prosecutorial use of mail and wire fraud, Columbia Law School professor John Coffee told the NYT.

So what will happen? Will the Abramoffs and Skilling and Brunos eventually skip away, their pasts chalked up to over-zealous prosecution?

Richard Thornburgh, attorney general at the time the honest-services law was passed told the NYT the fact that the Court took so many honest-services cases means they will do “something fairly sweeping,” but they can do that “without doing violence to proper law enforcement.”

Declaring it completely unconstitutional could be done without taking up three different cases. As white-collar crime specialist Eric Sussman told Robert Barnes of The Washington Post, “It looks like they’re trying to bring some clarity to the landscape.”

In other words, the justices will likely use the cases to find a way to narrow and define the law, not toss it off the books altogether.

The NYT story is here, the WaPo story here and The WSJ Law Blog post (including past coverage) here.

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