During oral arguments on Tuesday, virtually every justice on the U. S. Supreme Court expressed doubts about the disingenuous honest-services-fraud statute, suggesting its days are numbered.
What is honest-services fraud? No one really knows.
Indefinable and hence unconstitutionally vague, honest-services fraud is "a scheme or artifice to deprive another of the intangible right of honest services." Unfortunately, it cannot be defined without using it in its own definition. However, its sting is quite definable, punishable by five years in prison, a $250,000 fine, or both.
Chief Justice John Roberts Jr. declared that the public "has to be able to understand the law, and if it can't, it is invalid."
On the other side of the political spectrum, Justice Stephen Breyer imagined an employee shirking an honest day's work in order "to read the Racing Form," adding that this statute potentially criminalizes "100 million workers in the United States."
It would appear almost certain that not only will the high court strike down the law, but that its decision will be unanimous. Therefore, one can infer that federal prosecutors' vigorous and longstanding use and defense of such an obviously flawed law has been intellectually, morally, and legally underhanded. In fact, it is the prosecutors themselves who are guilty of honest-services fraud.
Alleged villains, indicted and/or convicted of honest-services fraud, include lobbyist Jack Abramoff; Enron's Jeffrey Skilling; former governors Rod Blagojevich, George Ryan, and Donald Siegelman; newspaper tycoon Conrad Black; and former Massachusetts House Speaker Salvatore DiMasi, to name a few.
As Justice Antonin Scalia recently noted: , "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.''
With certainty, the floodgates will now open. All convicted of honest-services fraud--especially those still in prison like Abramoff and Ryan--will petition the court that sentenced them to vacate the judgment and free them at once.
Given the apparent illegitimacy of this law--based on the deep skepticism expressed by the Supreme Court--defense attorneys will argue that their clients should be released from prison forthwith so that they do not suffer any further harm under this unconstitutional law.
Indeed, a judge in good conscience should sua sponte release Abramoff and Ryan from prison at once, pending the high court's decision.
It is no secret that honest-services fraud has turned federal prosecutors into Torquemadas of the American justice system, because it has allowed them to charge anybody with a federal felony. Prosecutors have used the following subterfuge with alarming success: Threaten a terrified white-collar defendant with a long jail term in a maximum-security prison with violent offenders, unless he or she pleads guilty to honest-services fraud. In return, the defendant will receive a much-reduced sentence in a relatively cushy federal prison camp. In this way, prosecutors are guaranteed a conviction. They also don't have to run the risk of a trial by jury. Even judges have become irrelevant, because they essentially rubberstamp the prison sentence the prosecutors recommend. Cagily, prosecutors, in effect, have usurped the entire legal process for themselves.
Fortunately, the Supreme Court appears on the verge of finally putting an end to this dangerous abuse of unchecked prosecutorial power.
Gary S. Chafetz is the author of The Perfect Villain: John McCain and the Demonization of Lobbyist Jack Abramoff, published last fall.