Tim O'Toole and Barry Pollack discuss the future of the honest services statute in light of the Supreme Court decision in Skilling, which limited its scope to cases of bribery or kickbacks. "Prosecutors used to be able to use the statute as a tool for anything that looked unseemly, like an undisclosed conflict of interest," says O'Toole. "That particular theory is dead." He continues, "What's left to untangle is how the elements of basic fraud fit into the honest-services fraud provision now. Do prosecutors have to show a misrepresentation of fact? It's my belief that they do."
"The government has so many tools to go after fraud that the truth is, they don't need the honest-services statute," says Pollack. Pollack asserts that narrowing the applicability of honest-services fraud could actually benefit prosecutors by forcing them to tighten their cases, rather than shooting for the most creative option.