February 23, 2009

"Honest services" fraud, writes Justice Antonin Scalia in a sharp dissent (PDF) to a denial of certiorari today, lacks any "coherent limiting principle" to prevent its "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." The 28-word mail-fraud statute's fundamental vagueness, he concludes, may itself be illegal, making the Court's refusal to squarely confront its meaning and constitutionality "quite irresponsible."

Update: Commentary on Scalia's Sorich dissent from Orin Kerr and my Heritage colleague Brian Walsh.