On Thursday, the Supreme Court rejected much of the notoriously vague
"honest services" law, under which a number of white collar criminals
have been prosecuted. No longer can you say a cufflink-wearing
conman committed fraud merely because he "deprive[d] another of the
intangible right of honest services"--you have to be a bit more
specific than that.
The ruling clearly "calls into question," in the words of The New York Times' Adam Liptak, "the convictions of Jeffrey K. Skilling, a former chief executive of Enron ... and Conrad M. Black, the newspaper executive convicted of defrauding his media company, Hollinger International." But aside from that? Political bloggers are taking a little while to figure this one out. "This law is pretty technical and its vagaries are well outside my expertise," admits Atlantic Council editor James Joyner at Outside the Beltway, though he thinks the ruling "strikes [him] as a very good one." Ernie Smith of Shortformblog appears confused by the caveats of the ruling. Meanwhile, it seems like half of National Review is trying to figure out how this works out for their imprisoned colleague--the very Conrad Black mentioned above.
Here's the Wire's attempt to round up some of the clearest analysis on the decisions.
- Broad Law Getting Narrower: Now Only Bribery or Kickbacks Prosecutable The indispensable SCOTUSblog writer Lyle Denniston attempts to cut to the heart of the matter. "For nearly a quarter of a century," he explains, "federal prosecutors pursuing corruption cases--involving public officials and those in private life--have had a broadly worded criminal law available, and they have used it both creatively and expansively." Today the court, "while refusing to strike down the law under the Constitution, pared it down to what the majority called its 'solid core': the law may be used only to prosecute bribery or kickbacks." There were actually "three separate rulings, threatening (though not quite nullifying) convictions or prosecutions in three different criminal corruption cases." According to Denniston, there's been very little idea of what this "honest services" law meant "almost from the day [it was] enacted."
- May Make Prosecuting Blagojevich Harder Jeralyn at Talk Left is one of a few to pull this nuggets out of the various reports on the case. Over at The Wall Street Journal, lawyer Robert Plotkin explains that "one of the charges against [Blagojevich] is honest services fraud."
- But It's Not Clear What It Does for Those Already Convicted (Including Skilling) Plotkin
continues to say that "it's hard to know for sure at this point"
whether the ruling will help those previously convicted who have
already gone through the appeals process. The court "said specifically
they are not throwing out [Enron chief Skilling's] conviction," he
notes. "They are asking the Fifth Circuit to see whether or not there
was any aspect of bribery or kickbacks involved in his case and thus
whether his conviction as to honest services should stand or be
reversed." But, "Skilling was also convicted of insider trading
and other charges, so, if the honest-services charge is thrown out it
doesn’t mean he’s home free."
- On Balance, 'Relatively Good Day' for 'White-White Collar Criminal Defendants,' decides Andrew Cohen at Politics Daily. "Neither [Skilling nor Black] is likely to be freed by today's rulings. But both have a better chance now than they did before the justices took their action."