The Open-Ended Nature of “Honest Services” Fraud

Andrew M. Grossman / February 24, 2009

(Commentary by Heritage’s Brian Walsh)

The Supreme Court yesterday decided not to consider an important case, Sorich v. U.S., on the meaning and scope of an exceedingly broad federal statute that has been used to prosecute a breathtaking range of conduct. Associate Justice Antonin Scalia again broke with the strict law-and-order stereotype often applied to conservative jurists by penning a trenchant dissent to the Court’s decision not to review the case. Scalia’s dissent also helps illustrate the dire need for federal criminal-law reform.

Two decades ago, the Court overturned judicial law-making by the lower federal courts, which had fabricated an extension to the already broad federal mail and wire fraud statutes. Under this judge-made extension, public officials at any level of government could be convicted of federal mail or wire fraud if they deprived their constituents of the “intangible right” to their government officials’ “honest services.” (more…)