Next week the Supreme Court will be hearing two criminal cases involving the controversial “honest services” law that has been used by federal prosecutors in recent years to police ethics in government and business. By focusing attention on the (sometimes) shady dealings of their targets, federal prosecutors have been able to deflect attention away their own actions, at least with regard to this statute. No longer.

We have a preview of next week’s Supreme Court argument because Justice Scalia filed an opinion in February lamenting the fact that the Court had just declined to hear an appeal involving the honest services statute. Here is an excerpt from Scalia’s opinion:

It is practically gospel in the lower courts that the statute “does not encompass every instance of official misconduct,” United States v. Sawyer, 85 F. 3d 713, 725 (CA1 1996). The Tenth Circuit has confidently proclaimed that the statute is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing,” United States v. Welch, 327 F. 3d 1081, 1107 (CA10 2003). But why that is so, and what principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.

Is it the role of the Federal Government to define the fiduciary duties that a town alderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules against certain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide“honest services” — with the details to be worked out case by-case.

Read the whole thing (pdf). A few weeks after Scalia filed this opinion, the Court evidently reconsidered and accepted several appeals involving the honest services law. 

For additional information, here is a podcast interview and an article I prepared for the Washington Legal Foundation. For more detailed info on the cases before the Supreme Court, go to SCOTUS blog.

For info on trends in the criminal law more generally, go here, here, and here.