The Supreme Court heard arguments today for two cases that raise challenges to a federal anti-corruption provision that has been instrumental in the prosecution of former lobbyist Jack Abramoff, former Illinois Gov. George Ryan and Enron executives, according to the Washington Post.
At issue is the “honest services” language adopted by Congress in 1988 that made it illegal for public or private employees to “deprive another of the intangible right of honest services.” Broadly interpreted, the honest services clause requires officials, including elected and corporate players, to act in the public interest without clearly defining what the public interest means.
Justice Antonin Scalia has repeatedly questioned the clause in recent years, calling into question whether the provision “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” because it is too vague. It can be construed to cover everything from a “salaried employee’s phoning in sick to go to a ballgame,” he said.
The first case involves Conrad M. Black, former newspaper baron and owner of Hollinger International, who was accused of defrauding his company out of more than $6 million, according to the [New York Times](http://www.nytimes.com/2007/12/11/business/media/11-black-web.html). Counsel Miguel Estrada argued that Black could only be rightly convicted if the government proves that an improper pay agreement caused economic harm to the company. He is asking the court to rule that the provision is vague and therefore unconstitutional because the language “effectively licenses prosecutors to target anything that offends their ethical sensibilities,” reported the Post. The second case involves Bruce Weyhrauch, a Republican former Alaska state representative, who was convicted of failing to disclose a conflict of interest between his office and an oil firm. Counsel for Weyhrauch argued that he should not have been prosecuted because Alaska state law did not expressly require him to disclose communications between his office and an oil firm that was lobbying him on a proposed tax bill while the representative was seeking legal work from the firm, according to the Post. A similar third case is also under consideration, though it will be scheduled for 2010. Former Enron chief executive Jeffrey K. Skilling said the government must prove that he was intentionally defrauding the public interest by financially benefiting from the infamous accounting scheme that brought down the once giant company. Government watchdog groups like Citizens for Responsibility and Ethics counter that the law should be seen as an “indispensible prosecutorial tool for fighting public corruption.” But other experts indicate that the law needs to be clarified, and accepting these three cases at once might be the Court’s way of doing this. “It looks like they’re trying to bring some clarity to the landscape,” Eric Sussman, former lead prosecution in the Black case, told the Post. “The Court does need to clarify this area of law.” For more on this week’s Supreme Court arguments, [watch Hari Sreenivasan’s interview](http://www.pbs.org/newshour/rundown/2009/12/will-high-court-tweak-well-known-miranda-right.html) with regular NewsHour legal analyst Marcia Coyle of the National Law Journal.