Justices debate 'honest services' law

Washington Post Staff Writer
Wednesday, December 9, 2009

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."

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