August 16, 2006

In an outgrowth of mail and wire fraud, federal law bans both public servants and many private actors from depriving clients and customers of their right to "honest services". But what does that mean? Well, that's where prosecutorial discretion -- and lots of it -- comes in. A WSJ editorial yesterday (sub-only) explains:

The problem is that no one is really sure what the phrase means. ...All of which has led to great confusion in the law, as each appellate circuit has marked out its own definitions. In the Merrill case, the Fifth Circuit chose a narrow reading, finding that the four Merrill executives had in fact provided honest services in Enron's interest in the Nigerian barge deal]. ... In his concurring opinion, Judge Harold DeMoss slammed Congress for putting the courts in this spot. Because the honest services statute was "undeniably vague and ambiguous," he wrote, "our court, and our sister circuits end up doing precisely what most would say we lack the constitutional power to do, that is, define what constitutes criminal conduct on an ex post facto and ad hoc basis." Judge DeMoss added that the statute is so vague as to be unconstitutional, and that at the very least Congress had a duty to provide the "requisite 'minimal guidelines to govern law enforcement.'"