Supreme Court was right on 'honest services' law

Saturday, June 26, 2010

"SUPREME COURT Weakens Law Used to Convict Corporate Criminals." "Court sides with ex-Enron CEO."

There would be cause for concern about the Supreme Court's ruling Thursday if you read only the headlines. The Supreme Court did, indeed, strike down an expansive reading of an anti-corruption law and in the process handed significant victories to former Enron executive Jeffrey Skilling, former newspaper baron Conrad Black and onetime Alaska lawmaker Bruce Weyhrauch. But it was right to do so.

The law in question makes it a crime to "deprive another of the intangible right of honest services." All nine justices concluded that the honest-services law was so broad and so vague that it could capture all manner of behavior, including what many reasonable people would not consider criminal. During oral arguments in December, Justice Stephen G. Breyer joked that a government employee reading the racing form during work hours could be put away for violating the law.

That possibility came to an end Thursday with a majority opinion written by Justice Ruth Bader Ginsburg that concluded that only bribery or kickbacks could be prosecuted under the statute. The majority, which included Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., stopped short of striking down the law in its entirety after concluding that Congress's handiwork should be "construed rather than invalidated" and finding that legislative history and a long line of court precedent indicated that the law was intended to capture bribery and kickbacks. Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas would have struck down the law altogether.

Critics worry that the ruling will encourage questionable and illicit behavior. This fear is likely overblown. The most serious breaches of trust, including bribery and embezzlement, have long been subject to specific criminal strictures; this decision does nothing to weaken those provisions. Some conflicts of interest may now be out of reach of the law, but not every ethical lapse is or should be a federal offense. Employers and voters can still take such infractions into account.

Criminal laws should be clear and precise so that the average person understands what actions would trigger a violation. The honest-services law failed by this simple but important measure and deserved to be struck down.

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