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"DOJ May Rein In Use of 'Honest Services' Statute"

All sorts of defendants, from newspaper magnate Conrad Black to Illinois Gov. Rod Blagojevich, have been prosecuted on grounds that they violated the federal fraud statute by depriving stockholders or voters of their right to "honest services". "But the U.S. Supreme Court's May decision to review Black's 2007 conviction may put the brakes on the honest services provision. The U.S. Department of Justice is likely to rein in use of the provision, 18 U.S.C. 1346, until the high court rules on Black's appeal next term, former federal prosecutors say." That's welcome news; as Justice Scalia noted in one case, "Without some coherent limiting principle to define what the 'intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites 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." [Lynne Marek, NLJ] Orin Kerr and Brian Walsh have more on the Scalia dissent, while Walsh notes the progress of a bill in Congress, the Public Corruption Prosecution Improvements Act of 2009, which seems aimed at intensifying the pace of such prosecutions.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.