Antonin Scalia

Fair Fraud

'Honest services' law

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In 1988 Congress enacted legislation making it a crime to "deprive another of the intangible right of honest services." The law became a handy tool for prosecutors taking on allegedly corrupt politicians and businessmen—a little too handy, since no one was sure exactly what the statute meant. In June the Supreme Court ruled that the law was unconstitutionally vague, violating the Due Process Clause by failing to give people fair notice of when they were committing a crime.

On its face, the law covered behavior as trivial as using a sick day to see a ballgame or updating a Facebook page at work. During oral arguments in December, Justice Antonin Scalia noted that prosecutors have been "all over the place" in their interpretation of the law. "And if the Justice Department can't figure out what is embraced by this statute," he said, "I don't know how you can expect the average citizen to figure it out."

Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, wanted to overturn the law altogether, but the six other members of the Court chose instead to interpret it narrowly, so that it covers only cases involving bribes or kickbacks. That reading invalidated former Enron CEO Jeffrey Skilling's conviction for "honest services fraud," based on his reporting of financial numbers that may have been misleading but were not induced by a bribe. 

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