Time To Move On: The Supreme Court’s Decision in Skilling Should End the Unbounded Application of the Honest Services Fraud LawThe Champion
In this article, Tim O'Toole discusses the future of the honest services law after the Supreme Court's decision in Skilling v. United States
. Over the past 20 years, the government has treated the "honest services fraud" law, 18 U.S.C. § 1346, as the ultimate in flexible prosecutorial weapons — a statute whose application, especially in high-profile cases, seemed limited only by the prosecutor's imagination. Those days, however, clearly came to an end on June 24, 2010. In Skilling v. United States, all nine members of the Court expressed grave concerns over the expansive nature in which this facially vague statute had been applied by prosecutors. While three members of the Court would have addressed these concerns by striking the statute in its entirety on vagueness grounds, the Court's majority chose instead to construe the statute as criminalizing "only the bribe-and-kickback core of the pre-McNally case law." The majority suggested that application of the statute to conduct outside of this "core" is unconstitutional, and thus held that limitation of the statute to this "core" of cases was necessary to satisfy these concerns. The majority, in fact, cautioned Congress that crafting a statute to be applied outside of this "core" would be difficult, if not impossible.