Cross Posted at Legal Schnauzer
Based on early reports, it appears the Justice Department and Congress are taking the wrong approach. Anyone who has followed either of those institutions in recent years should not be surprised by that. But this is an important issue, and the fix on the fraud law needs to be done the right way.
We don't claim to be experts on the crafting of federal statutes. But we have studied the honest-services issue extensively, and we have some ideas on how the law should be worded.
First, we have conflicted feelings about the honest-services law. On the one hand, we are pleased that the Supreme Court's ruling in a case involving former Enron executive Jeffrey Skilling means the defendants in the Don Siegelman and Paul Minor cases have an enhanced chance to get their convictions overturned. Those two cases never should have come down to a technicality on the honest-services law; appellate courts should have overturned the convictions on numerous other grounds. But the Siegelman and Minor defendants could benefit from the high court's finding that the law now applies only in cases involving bribes and kickbacks--and we are all for anything that allows innocent people to go free.
The down side, however, is that the Skilling ruling essentially makes the honest-services law worthless. Other federal law already covers bribes and kickbacks, so the honest-services law--as it stands now--is pretty much unnecessary.
While prosecutors unquestionably used the old honest-services law in an abusive fashion, such a statute is needed. The point of the law is to punish misconduct where there is a non-financial motive--or where a financial motive cannot be proven.