Conrad Black’s Persistence May Assure The Fed’s Catch 22 Never Sees Its 23rd Birthday

A tool that has been used to convict numerous infamous politicians and CEOs, the honest services statute should be a violation of honest services in itself. This statute has been a catchall trap for 22 years, and for me that (un)lucky number brings to mind the old phrase ‘Catch 22’. With honest services, you truly are damned if you do commit fraud, and damned if you don’t.

Federal prosecutors across the land have been able to win cases against whomever they target because of a 28 word sentence. For those of you not familiar with this infamous sentence added by Congress in 1988 to 18 U.S.C. §1346 (a federal statute concerning wire and mail fraud) I will reproduce it here, courtesy of the Cornell Law School website:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

What does that mean? The answer is, no one really knows. Recently, even the Supreme Court has acknowledged the law is terribly vague. In the next few weeks a judgment on the legality of the Honest Services statute will come down from that high court, and almost everyone expects that this unclear law will be stuck down.

So why do federal prosecutors use it all the time? It has very low evidentiary standards. You do not need to prove that someone benefitted financially from a fraud in order to convict him or her of honest services fraud. This statute has allowed prosecutors in America to avoid doing what the taxpayers are paying them to do – using evidence to prosecute a case.

It appears that most of the members of the Supreme Court dislike this law. Justice Antonin Scalia described honest services as “mush” and said it “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.” I think former Illinois Governor Blago can relate to Justice Scalia’s statement of ‘headline-grabbing prosecutors’. Furthermore, I wonder if Justice Scalia had U.S. Attorney Patrick Fitzgerald in mind when he issued his statement.