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Justices debate 'honest services' law
Arguments come as justices issue first opinions of term

By Robert Barnes
Washington Post Staff Writer
Wednesday, December 9, 2009; A07

A federal law that makes it a crime to deprive the public or one's employer of "honest services" is a favorite of prosecutors on the hunt for corrupt politicians and self-dealing corporate honchos.

But it found few admirers Tuesday at the Supreme Court.

From one end of the mahogany bench to the other, and across the court's notable ideological divide, justices took turns criticizing the 1988 law that makes it a crime to "deprive another of the intangible right of honest services." The most frequent complaint was that it is so vague that it is impossible for the average person to know what is being made illegal.

"Perhaps there are 150 million workers in the United States," Justice Stephen G. Breyer told the government lawyer defending the statute. "I think possibly 140 [million] of them would flunk your test."

By the end of two hours of oral arguments, the decision seemed to be whether to attempt to limit the reach of the law or to simply declare it unconstitutionally vague.

Justice Antonin Scalia, the law's chief critic, said he did not "have the heart" to try to find a way to save it. "Why should I turn somersaults," he asked, to help render constitutional a law he considers "inherently vague."

The arguments came as the court issued its first opinions of the term, including the inaugural decision written by Justice Sonia Sotomayor. It was a low-key and noncontroversial decision that upheld a lower-court ruling about when an order implicating attorney-client privilege can be appealed.

All the justices agreed with the outcome, although Justice Clarence Thomas disagreed with part of the reasoning.

To decide the honest-services law, the court has taken three cases, including one from convicted newspaper tycoon Conrad M. Black. He argues that he should not have been convicted without the government proving that his unusual pay arrangement cheated the company he once headed.

Black's case was heard Tuesday, along with that of former Alaska state representative Bruce Weyhrauch. The ex-lawmaker says he should not be the subject of federal prosecution because no state law required him to disclose that he was looking for legal work with an oil services firm at the same time the company was lobbying him on a tax bill.

In the spring, the court will hear an appeal from former Enron chief executive Jeffrey K. Skilling, who contends that the government needed to prove he was trying to line his own pockets with the fraudulent accounting scheme that brought down the giant company. Skilling says his actions were to save the company.

The cases raise distinct issues with which the court could limit the law. But Miguel Estrada, Black's attorney, told the justices that there is no "elegant out to the morass that the lower courts have been confronting" and that as "an essential matter, this statute cannot be saved."

The justices offered fanciful thoughts on what kind of behavior -- playing hooky from work to attend a ballgame, for instance -- might be swept up under the law. Breyer offered a somewhat dated-sounding scenario of a deadbeat employee complimenting his boss's hat to get rid of him, and then turning his attention to the Racing Form.

But Deputy Solicitor General Michael R. Dreeben said history shows that prosecutors have not abused the malleable language in the law. "The statute covers bribes, kickbacks and undisclosed conflicts of interest by an agent or fiduciary who takes action to further that interest," he said.

Congress enacted the honest-services language in 1988, after the Supreme Court limited the mail fraud statute, saying it "does not refer to the intangible right of the citizenry to good government." The ruling said that if Congress intended otherwise, "it must speak more clearly than it has."

After withering criticism from Scalia that it had not, Dreeben said, "I think we would all agree, Justice Scalia, that had Congress taken your counsel, I would not be here today defending what the Congress attempted to do."

To which Breyer said, "I thought there was a principle, that a citizen is supposed to be able to understand the criminal law, that was around even before Justice Scalia."

To which Chief Justice John G. Roberts Jr. upped the ante, saying such an unclear law "is invalid."

Declaring the statute unconstitutional would raise "a very good question" about what should happen to those who were convicted under its provisions, said Andrew Wise, a Washington lawyer who specializes in white-collar crime.

Those with active appeals of their convictions could use the decision to their advantage, he said. But even those with final judgments "could have pretty good grounds to go back to the trial court and say, 'My conviction has to be overturned because what I was convicted of was not a crime,' " Wise said.

The cases argued Tuesday are Black, et al v. United States and Weyhrauch v. United States.

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