Overly Broad Honest Services Law Must Go

Virtually all agree that the 1988 honest services amendment to the mail and wire fraud statutes, defining a scheme to defraud, is seriously defective in that it is vague and overly broad. Many have concluded that the statute can and should be saved through a judicial construction reading into it elements of prior case law under the mail and wire fraud statutes. In an unusual move, the U.S. Supreme Court has granted certiorari petitions in three separate honest services cases: U.S. v. Black, 530 F.3d 596 (7th Cir. 2008); U.S. v. Weyhrauch, 548 F.3d 1237 (9th Cir. 2008); and U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009). Two of those cases (Black and Weyhrauch) have been argued, and Skilling is to be argued in the spring. In that case, Jeffrey Skilling, the former president of Enron Corp., has clearly requested that the court hold the statute unconstitutional because it is too vague to provide notice of what conduct is deemed potentially criminal. As Justice Stephen Breyer said during oral argument in the Conrad Black case, at any given time, of the roughly 150 million workers in the United States, 140 million of them are engaged in conduct that potentially violates the statute.

Although the statute is extremely vague, the fundamental problem with it is not so much its vagueness as the fact that it has unlimited scope. Vagueness can be remedied through judicial clarifying interpretation based on case law existing when Congress enacted the statute. The court could do this on the not unreasonable assumption that Congress adopted some of the case law giving content to the concept of honest services — a legal concept that, unlike the concept of property, does not have a clearly defined pedigree at common law.