Results matching “"honest services"”

Bond v. U.S. - PointOfLaw Forum

Manhattan Institute Center for Legal Policy intern Meghan Herwig assisted in drafting this post.

Monday's Supreme Court decision in Bond v. United States, which we earlier profiled here, involved a case raising fundamental constitutional questions of federalism and separation of powers. Rather than grappling with these questions, the Court majority ruled on statutory grounds.

Case background
Carol Anne Bond, a Pennsylvania microbiologist, attempted to poison her husband after learning that he had impregnated her best friend. She was convicted of violating a U.S. federal statute enacted to implement the Convention on Chemical Weapons, a 1997 treaty intended to prevent the proliferation of chemical weapons. On appeal, Bond's lawyers argued that the law did not apply to Bond's conduct and second that even if it applied it was unconstitutional.

Key to Bond's constitutional claim was whether a treaty signed by the president and ratified by the Senate can expand Congress's legislative powers beyond those otherwise enumerated in the Constitution. A 1920 Court decision authored by Justice Holmes, Missouri v. Holland, had held that for a valid treaty "there can be no dispute about the validity of the statute under Article I, ยง 8, as a necessary and proper means to execute the powers of the Government" -- without further analysis or authority. A subsequent Court decision, Reid v. Covert, limited this holding such that a treaty obligation could not empower Congress to violate the Bill of Rights. More recent scholarship by Georgetown law professor Nicholas Quinn Rosenkranz has challenged Missouri v. Holland's holding in light of the constitution's text, history, and structure.

While the Supreme Court unanimously overturned Bond's conviction, Chief Justice Roberts's majority opinion, on behalf of six justices, avoided the constitutional question. Roberts reasoned that the Chemical Weapons Convention was not intended to cover minor, local poisoning incidents and determined that Congress could not have intended such a construction of the convention's implementing statute, which would upset the constitutional balance of power between Congress and the states. Roberts thus construed the law narrowly and concluded that the law could not apply to Bond's crime.

Justices Scalia, Thomas, and Alito each filed separate concurring opinions arguing that the case had to be decided on constitutional rather than statutory grounds. In their view the statute on its face clearly applied to any attempted use of a "toxic chemical" not used for a "peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity." Justice Scalia's concurrence, joined by Justice Thomas, was particularly specific in its inquiry into the limits of the power given to the President and Senate to "make" treaties -- following significantly the line of argument of Professor Rosenkranz's article -- and called for Missouri v. Holland to be overturned.

SCOTUSblog's Amy Howe ably summarizes the decisions in more detail here.

At Volokh, Jonathan Adler suggests that the concurring opinions may signal some discontent on the part of the more conservative justices with the Chief Justice's tendency to embrace strained statutory readings to avoid constitutional questions (the so-called doctrine of "constitutional avoidance"). His co-conspirator Ilya Somin reads the tea leaves and suggests that in a future case where the treaty issue is more explicit, the Court may be disposed to overturn Missouri v. Holland and limit the ability of a treaty to expand Congressional legislative authority, and offers further thoughts on the justices' various positions.

In its embrace of constitutional avoidance, the Court's decision is obviously reminiscent of the Chief Justice's lone opinion in NFIB v. Sebelius, in which he construed the individual mandate of the PPACA (Obamacare) to be an exercise of Congress's taxing power rather than its Commerce Clause power to uphold the law's core provision (though in that opinion, the Chief did observe that the mandate was clearly a penalty, and only reached the "tax" construction as an alternative functional ruling through which Congress could have reached the same end). The Bond decision also brings to mind Justice Ginsburg's opinion in Skilling v. U.S., which effectively rewrote the "honest services fraud" statute (construing the law's vague provision to apply only to bribes and kickbacks) to avoid deciding whether it was unconstitutionally vague.

The Bond and Skilling decisions may signal how the Court will rule in the upcoming Yates v. United States. Yates involves the prosecution of a commercial fisherman accused of violating the Sarbanes-Oxley financial reform law's prohibition on destroying, manipulating, or concealing any "record, document or tangible object" to hinder federal investigations -- in the context of throwing back fish that may have been smaller than the minimum size allowed by regulations. While a fish is certainly a "tangible object," the Sarbanes-Oxley law, passed in the wake of the Enron-era corporate scandals, was clearly contemplating document-shredding and similar destruction of corporate records such as that conducted by Enron's auditor, Arthur Andersen. It will be interesting to watch whether the justices in the Bond majority will continue the trend of narrowing criminal statutes beyond their clear terms when the government is applying a broad statutory provision in the criminal-law context.

Scruggs tries to wiggle out of guilty plea - PointOfLaw Forum

Prosecutors charged Dickie Scruggs and Zach Scruggs with multiple crimes, and as part of plea bargaining, they pled guilty to honest services fraud. Zach previously unsuccessfully used the Skilling decision in an attempt to undo his guilty plea, and Alan Lange predicts that Dickie Scruggs's similar effort will come to naught, but imagines that Scruggs is hoping for positive PR implications.

But under our legal system, there's no penalty for, and thus no downside to, wasting a court's time with a motion with a 0.1% chance of success.

Paul R. Enzinna, partner at Brown Rudnick, lends his extensive expertise in white collar criminal defense to discuss, in a new PoL column, the federal court's expansive interpretation of "honest services" fraud in the Kevin Ring trial and most importantly, the potential implications such expansive interpretation may have in relation to traditional American business relationships.

Mr. Enzinna writes:

Jim invites Pam, an employee of a potential customer, to lunch. Over the next several years, during which Jim and Pam enjoy dozens of lunches and dinners, and Jim treats Pam to many rounds of golf, Pam's company becomes one of Jim's biggest customers. None of this is extraordinary -- most, if not all, businesses, entertain customers in the hope of developing business. However, a recent decision by the U.S. District Court for the District of Columbia threatens to criminalize this practice. In United States v. Ring, the court held that an individual who provides a "thing of value" to another, with the "corrupt intent to influence" her, may face up to 20 years in prison for violating the federal "honest services fraud" statute.
Mr. Enzinna anticipates regular contribution to PoL's commentary on the topic collectively dubbed "overcriminalization," so we can look forward to additional thought-provoking and important input in the near future.

Paul F. Enzinna
Partner, Brown Rudnick

Jim invites Pam, an employee of a potential customer, to lunch. Over the next several years, during which Jim and Pam enjoy dozens of lunches and dinners, and Jim treats Pam to many rounds of golf, Pam's company becomes one of Jim's biggest customers. None of this is extraordinary -- most, if not all, businesses, entertain customers in the hope of developing business. However, a recent decision by the U.S. District Court for the District of Columbia threatens to criminalize this practice. In United States v. Ring, the court held that an individual who provides a "thing of value" to another, with the "corrupt intent to influence" her, may face up to 20 years in prison for violating the federal "honest services fraud" statute.

The federal mail and wire fraud statutes prohibit schemes to "obtain[] money or property, but prior to 1987, courts expanded the statutes' reach, applying them to reach, in addition, deprivations of "intangible rights," including the right to another's "honest services." This theory of "honest services" fraud was applied most often in cases of bribery of public officials, but was also applied in the commercial context. However, in 1987, the Supreme Court held that the mail and wire fraud statutes are limited by their terms to deprivations of money or property. Congress responded nearly immediately, passing a separate statute defining fraud to include deprivations of "honest services."

After his 2006 conviction for "honest services" fraud, former Enron CEO Jeffrey Skilling argued on appeal that the statute should be struck down for failing to specify what conduct is prohibited. The Court agreed that the statute is vague, but rather than striking it down, held that it must be limited to conduct at its "core" -- i.e., bribes or kickbacks paid to influence decisions. In other words, to prove honest services fraud after Skilling, the government must show not merely a deprivation of "honest services," but also that the deprivation resulted from a bribery or kickback scheme. To prove bribery, the government must show an understanding between the giver and the recipient that there will be a quid pro quo, with the recipient providing something of value in exchange for the bribe. However, in Ring, the court held that a defendant may be convicted of honest services fraud with no showing of any quid pro quo agreement, but on a showing of only a unilateral "corrupt intent to influence." Skilling applied this theory both to charges of honest services fraud involving public officials, and those involving conduct in the private sector -- in each case, the statute covers only bribery or kickback schemes.

Kevin Ring was a Washington lobbyist who worked with Jack Abramoff. Unlike Abramoff and several other of his associates, Ring was not charged with bribery or defrauding clients. Instead, he was indicted for several counts of honest services fraud, for providing members of Congress and their staff with travel, "fundraising assistance," drinks, golf and tickets to sporting events and concerts. The government claimed that Ring provided these items in order to "groom" officials by making them "more receptive to requests for official actions on behalf of [Ring's] clients in the future." However, the government presented no evidence of any agreement between Ring and any public official that there would be any quid pro quo. Instead, prosecutors were permitted to argue that Ring could be convicted upon a showing that he intended to "to influence and reward official acts." And at the government's request, the court instructed the jury that it was "not necessary for the government to prove that . . . the public official actually accepted the thing of value or agreed to perform the official act."

The jury in Ring clearly had difficulty discerning and applying the law. During deliberations, it asked the judge for additional clarification of the line between "legal and illegal gifts," but the court refused any additional instruction. A short time later, the jury returned with a guilty verdict.

The Ring jury -- and the American public -- may have found his wining and dining Congressional staffers in order to obtain access distasteful, but absent a quid pro quo agreement, it was not honest services fraud. The Ring decision represents a disturbing trend toward "overcriminalization," in which regulatory transgressions and other conduct is transformed into criminal offenses by legislators eager to prove they are "tough on crime," abetted by courts that fail to enforce necessary limits on prosecutors' efforts to expand the scope of "criminal" conduct. Kevin Ring's appeal will be heard in the spring. If allowed to stand, the Ring decision would make potential criminal defendants of the millions of men and women who provide current and potential customers with "things of value" in order to make them "more receptive" or to "build a reservoir of goodwill." That prospect should send shivers down the collective spine of American business.

Andrew Wise, leading D.C. defense attorney at Miller Chevalier and James Copland, director of the Center for Legal Policy at the Manhattan Institute, discuss the 'Honest Services' Fraud Statute post Skilling v. U.S. and Wise's defense of Kevin Ring, a former lobbyist who was involved in the Jack Ambramoff Indian lobbying scandal. Andrew Wise offers updated insights on Congressional attempts to reverse Skilling and redefine 'honest services' fraud as he similarly discussed at a Manhattan Institute forum in 2010.

James Copland and Andrew Wise
by Manhattan Institute

Last week on, we featured a post discussing H.R. 2572, the Clean Up Government Act of 2011 which passed through the House Judiciary Committee unanimously in early December. The main objective of the new law generally, is to "amend the federal criminal code to revise and expand prohibitions against bribery, theft of public money, and other public corruption offenses."

In that entry, we included excerpts from the written testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security of Timothy O'Toole, attorney with Miller Chevalier and board member of the National Association of Criminal Defense Lawyers. In his statement, Tim expressed legitimate concern with regard to a renewed effort by Congress to pass robust public corruption legislation which, among other things, seeks to redefine the explicitly limited definition of honest services fraud as articulated by the court in the 2010 case, Skilling v. United States.

Our own James Copland, director of the Center for Legal Policy at the Manhattan Institute, had the opportunity to discuss with Tim these concerns about "overcriminalization."

Tim defines overcriminalization as:

...the rapid expansion over the last forty years of a host of criminal laws, many of which are vague, many of which overlap. Those same laws have decreased the intent requirements that traditionally were the foundational principle of criminal law that is, for the most part, [that] the criminal law would punish people when they did things with a bad intent, when they knew what they were doing was wrong and they did it anyway. Now a lot of these new expanding criminal laws, and most of them are federal criminal laws [which] reach into traditional state concerns, eliminate intent requirements. Then on top of that, they contain ever-increasing sentences.

The concern about overcriminalization in the context of the new Clean Up Government Act, as identified by Tim, is that the new law:

...tries to fix a problem that doesn't really exist. Most conduct that people would consider public corruption, virtually all conduct, is governed by the federal laws already. When we had the hearing on this, no one from the Department of Justice, none of the witnesses, could put their finger on any of sort of conduct that hadn't been punished because of the elimination of the honest services fraud law or at least parts of it by Skilling. I think that this just shows that there really isn't any conduct, [more specifically] public corruption, that is not punished now that was properly punished before Skilling.

Listen to the full podcast and send your comments and questions via #PoLforum on Twitter.

James Copland and Timothy O'Toole by Manhattan Institute

Examining 'honest services' post-Skilling - PointOfLaw Forum

Steven Wisotsky, a law professor at Nova Southeastern University Law Center, has written an interesting piece, Honest Services Fraud After Skilling v. United States published in the Federalist Society's Practice Groups' Journal Engage, tracking the historical, legal, and judicial developments leading up to Skilling v. United States. Professor Wisotsky then focuses his analysis on post-Skilling jurisprudence and the "unresolved issues" regarding honest services.

Professor Wisotsky writes:

The cycle of the Court imposing limits on the mail fraud statute and inviting Congress to speak "more clearly" may continue. On September 28, 2010, the Honest Services Restoration Act was introduced in the Senate by Senator Patrick J. Leahy. The bill was sent to committee, but it was not passed before the session ended, thereby killing the bill. The bill included both undisclosed self-dealing for public officials and undisclosed private self-dealing for officers and directors. The term "public official" was defined, but "officers" and "directors" were not. The bill also required a mens rea requirement; the individual must "knowingly falsify, conceal, cover up, or fail to disclose material information that is required to be disclosed regarding the financial interest in question by any Federal, State, or local statute, rule, regulation or charter applicable" to the individual.It is unknown whether the bill will be re-introduced.

The Skilling decision did not address important questions regarding honest services and has also created some new ones. For example, it stated that the Court's definition of honest services fraud only reaches serious culpable conduct without defining the term "serious" or explaining whether "minor" frauds can be prosecuted under the honest services statute.Other lacunae relate to the existence vel non of a fiduciary duty, public or private.

Legislative efforts post-Skilling have also been accompanied with suggestions from experts like Elizabeth Sheyn to clarify honest services.

Around the web, September 2 - PointOfLaw Forum

  • If the antitrust laws are to protect competition, rather than competitors, why is Sprint's stock surging upon news of DOJ's suit to block the AT&T/T-Mobile merger? [Wright @ TOTM; more; Manne @ TOTM]

  • The need for FCPA reform; government prosecutions show overreach. [National Law Review and Gibson Dunn via Reuters via CJAC]
  • Jon Huntsman plan proposes repeal of Dodd-Frank and part of Sarbanes-Oxley. [Huntsman; WSJ]
  • Devil's bargain: Wall Street and the Martin Act. [Olson @ NY Post via OL]

  • Iowa Supreme Court rejects proposal to keep lawyer discipline secret. [Des Moines Register; earlier @ OL]
  • "Congress Resiscitating Honest Services Fraud" [Right on Crime]
  • This "article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence." [J L Econ & Policy @ SSRN]
  • Erwin Chemerinsky was kind enough to represent attorney Stephen Yagman without pay in his criminal trial and appeal; now Yagman is claiming ineffective assistance of counsel. [Patterico; earlier at POL and OL]

  • What media bias? A telling Freudian slip in a New York Times story. [Mac Donald]
  • Bluetooth decision a "small blow for common sense." The "Hearing Health Matters" summary is incorrect, though: the settlement was for class members who didn't suffer any hearing injury. That's how ridiculous it was. [TMCNet; Hearing Health Matters]

Trying to reverse Skilling v. U.S. - PointOfLaw Forum

We know overcriminalization and overaggressive DOJ prosecutions are a problem. So, of course, Congress is looking into making the "honest services" criminal statute vague and broad again post-Skilling. [BLT; House Judiciary; HR 2572]

(Update: good background post by Professor Bainbridge on Skilling, and see also Gryphon.)

Honest services fraud event - PointOfLaw Forum

A panel of attorneys discussed the consequences of recent Supreme Court jurisprudence on "honest services" fraud March 9. [Fed Soc (Chicago Lawyers chapter)]

Fifth Circuit: "harmless error" in Skilling case - PointOfLaw Forum

The Fifth Circuit, in a remarkably shallow opinion, finds harmless error in Jeff Skilling's honest services fraud instruction and conviction. [Podgor (discussing harmless error procedure issues); Berman; Kirkendall; TalkLeft; WSJ Law Blog]

Around the web, November 25 - PointOfLaw Forum

Happy Thanksgiving!

  • Prosecution of silicosis attorney who bribed insurance company officials to settle cases proceeds without "honest services" claims. [; United States v. Hoeffner (5th Cir. 2010)]
  • Taxpayers pay government to sue itself in environmental cases. [Ciano @ Daily Caller]
  • Ribstein vs. Bainbridge on insider trading. [WSJ Law Blog]
  • The new issue of Journal of Tort Law focuses on Richard Epstein.
  • "Consider, too, the possibility that [San Francisco's anti-circumcision proposal] might drive those seeking circumcisions into the hands of back-alley mohels, sometimes charging outrageous fees and operating in circumstances that, because unregulated, might be much more dangerous to the patient." [Horwitz @ Prawfsblawg]
  • Google gives a $6 million bonus to an engineer; Gawker's sources suggest it was because she was female. Gawker doesn't ask: does this create a Title VII class action claim from male engineers? [Gawker]
  • As the government spends money fighting obesity, it is also spending money to open an IHOP in the yuppie Columbia Heights neighborhood in Washington, DC. [Freddoso @ DC Examiner]

9/28 Congressional Hearing: Reining in Overcriminalization - PointOfLaw Forum

Implicit in tomorrow's 10:00 a.m. Senate Judiciary Committee hearing on honest services fraud, which Carter linked last week, is the notion that there is a need to "restore" prosecutorial tools after the Skilling decision that reined in the vague federal honest-services-fraud law (see our post here and links therein). As our regular readers know, we tend to be skeptical; see Ted's article here; my op-ed here; and Marie Gryphon's writings here, here, and here.

Interestingly, there is another Congressional hearing tomorrow, on the House side, which promises a look at federal criminal law more in keeping with our views:

At 3 p.m. in the Rayburn House Office Building, room 2141, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing entitled "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions." All the hearing details have not yet been released, but based on my knowledge of the staff's plans, it promises to be a very provocative panel with victim witnesses, similar to last summer's hearing on the same topic. Those in the D.C. area should check it out.


The witness list is as follows:

Panel I

  • Jim Lavine, National Association of Criminal Defense Lawyers

  • Bobby Unser, Personal Impact Victim, Albuquerque, NM

  • Abner Schoenwetter, Personal Impact Victim, Pinecrest, FL

Panel II

  • Brian Walsh, The Heritage Foundation

  • Stephen Smith, University of Notre Dame Law School

  • Ellen S. Podgor, Stetson University College of Law

  • Andrew Weissmann, Jenner & Block, LLP

A Senate Judiciary hearing on honest services fraud - PointOfLaw Forum

From the Senate Judiciary Committee:


The Senate Committee on the Judiciary has scheduled a hearing entitled "Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court's Skilling Decision" for Tuesday, September 28, 2010 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

Scheduled witnesses are:

  • Lanny A. Breuer, Assistant Attorney General, Criminal Division, Department of Justice
  • Samuel Buell, Professor, Duke University School of Law
  • Michael Seigel, Professor, University of Florida Levin College of Law
  • George Terwilliger, Partner, White & Case

Scotusblog's entry on Skilling v. United States is here.

Conrad Black's Prison Experience - PointOfLaw Forum

Conrad Black, a Canadian media magnate whose conviction under the reprehensibly vague "honest services" statute was unanimously vacated by the Supreme Court last month, was freed on $2 million bail pending a rehearing on the question of whether the prosecutor's use of the honest services theory amounted to harmless error.

In the New York Sun, Black writes that his 28 months in federal prison has made him a critic of overcriminalization and excessive federal prison sentences:

I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody...Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases.

The Justices Get Creative On 'Honest Services' - PointOfLaw Columns

Marie Gryphon National Law Journal's "Supreme Court Insider", 07-21-10

The U.S. Supreme Court decided last month in Skilling v. U.S. that a federal law purporting to criminalize the act of depriving another of "the intangible right to honest services" actually criminalizes only "bribes and kickbacks," although neither the word "bribe" nor the word "kickback" appears in the statute. This narrow view of the troublesome law is sensible as a matter of public policy but muddled as judicial precedent. The Court has confused the distinction between interpreting a law and making up its meaning. Invalidating the law entirely would have been a better course.

The words "vague or ambiguous" appear together often, but they are not synonyms, and the task of judicial interpretation is usually simpler in cases of ambiguity. An ambiguous law has two or more specific, distinct meanings. For example, a statute might prohibit "the possession of arms in a public library." The word "arms" may refer either to firearms or to human limbs, making the statute ambiguous. To interpret the statute, a court may choose between these possibilities based on context, on the likely understanding of the average citizen, and (arguably) on the legislative history of the law.

Vagueness presents a more difficult problem for judges. For example, when is physical danger "immediate," under a law that requires police protection for those in immediate danger? Immediacy is one of those qualities -- like "tall" or "old" -- that simply does not have any clear cut-off. Is 6 feet, 2 inches tall? Is a day or two immediate? To interpret vague terms courts must choose a threshold on a spectrum of possibilities.

In Skilling (and in two other honest services cases, Black v. U.S. and Weyhrauch v. U.S. , the Supreme Court faced the unenviable task of interpreting language that had both problems. The word "right," for example, is ambiguous. Does it refer to a legal right under existing state law? Under existing federal law? Or did Congress mean to assign it some inchoate meaning unique to the honest services law itself? The phrase "honest services" is hopelessly vague. Does visiting Facebook at work constitute a scheme to deprive your employer of honest services? A prison sentence of up to 20 years suggests that this surely can't be right, but the "honest services" language provides no indication of where the line must be drawn.

The Court understandably wished to avoid this Herculean interpretive task, but it declined to simply hold the statute unconstitutional and invite Congress to clarify its meaning. Instead, the Court looked for the "overlap" between the lower courts' various interpretations over a period of decades. The Court then held that the statute criminalizes only "bribery and kickbacks" because these two forms of conduct seemed to fall within every lower court's interpretation of the statute.

But it isn't an act of interpretation to determine the "overlap" between several existing interpretations of a statute and then decide that the statute refers only to that overlap. For example, suppose a school teacher must interpret an instruction to give a test to all of the "exceptional older students" in her classroom. One fellow teacher had thought the instruction referred to honor students over the age of 10, while another thought the instruction referred to students with special needs over the age of 11. It wouldn't be sensible for the third teacher to give the test only to the one 12-year-old student in the class who was both an honor student and had special needs. It would be silly. And yet, that is the course that the Court has taken, even though it -- like the teacher in our example -- would have been better advised to go back to Congress (or the principal) to ask for clarification.

The fractious history of the honest services law illustrates well why the Court might have been reluctant to take the obvious course. The statute was enacted by a careless earlier Congress in a fit of pique following the Court's effort to clarify vague federal fraud laws in a 1987 case called McNally v. U.S. Congress did such a bad job of responding to the McNally decision that no jurist could relish the prospect of inviting them to try again, and public officials and businesspeople will be justifiably relieved by the relatively clear and narrow meaning that the Court has assigned to the honest services statute. The Court would have been truest to its interpretive role, however, to declare this law unconstitutional instead.

Marie Gryphon is a former practicing attorney and a senior fellow at the Manhattan Institute's Center for Legal Policy.

By James Copland Washington Examiner, 06-30-10

Perhaps signaling that the conservative critique of judicial activism has won over American voters, Supreme Court nominee Elena Kagan opened her confirmation hearings Monday by articulating a "modest" vision of judging: being "properly deferential" to elected representatives. But what exactly does she mean? It's of course true by definition that courts should defer to legislatures when the legislatures behave "properly"--but disputes over jurisprudence center precisely over disagreement about what's proper and what's improper.

For instance, should the courts defer to the elected branches when they violate explicit constitutional commands and try to seize our guns or homes? I'd say not, but the same left-leaning justices prone to finding new "unenumerated rights" in our Constitution seem to think differently. In this week's McDonald v. Chicago and in 2008's Heller v. District of Columbia, these judges essentially read the Second Amendment right to bear arms out of the Constitution, much as they did with the Fifth Amendment's Takings Clause in 2005's Kelo v. New London.

Similarly, why should the Supreme Court defer to elected representatives when they set out to ban political speech in clear violation of the First Amendment? President Obama disingenuously demagogued the Court's recent Citizens United campaign-finance ruling in his State of the Union address earlier this year, but let's be clear what that case was about: the federal government was trying to prevent a nonprofit group from distributing a video critical of then-presidential candidate Hillary Clinton. The Solicitor General's office headed by Kagan actually suggested that the government could ban books (though it later backed off that claim).

When elected leaders are trying to tinker with the rules governing their own reelections, courts should be skeptical, not deferential. As the Supreme Court invalidated campaign-finance rules in its 1976 decision Buckley v. Valeo, it took notice that Congress had set election-spending limits below the threshold level of any successful challenge to an incumbent in the preceding election. And let's not forget that political leaders can attempt to game such rules for partisan advantage, too. Kagan herself understood as much, when in the Clinton White House she noted with enthusiasm that a provision of the campaign-finance bill that became McCain-Feingold "affects Repubs, not Dems!"

Saying that the courts should defer to Congress also presupposes that Congress is clear about what it wants. Many times, it isn't. Congressmen and Senators regularly pass vague or ambiguous laws and force the other branches of government to determine what these laws actually mean.

Loose congressional drafting leads to broad regulatory schemes that may (or may not) preempt state rules and tort litigation. By failing to clarify their intent, congressional leaders can avoid upsetting business leaders and doctors on the one hand, and trial lawyers on the other.

In a criminal context, congressional vagueness allows politicians to "get tough on crime" without really saying what's criminal. Discretion shifts to prosecutors, and the rest of us are left unable to ascertain the boundaries of laws that might put us in jail. To save innocent citizens from being imprisoned, courts are forced to toss out Congress's laws in their entirety or to try to rewrite the laws to make them clearer--as the majority of the Supreme Court did last week with a ridiculous federal law that had made it a crime "to deprive another of the intangible right of honest services".

The left, including many of the Democratic Senators on the Judiciary Committee, has made a concerted effort to define "judicial activism" as "overturning Congress." But Congress should be overturned when it crosses its clear constitutional boundaries: that's why we have judicial review. And when Congress is unclear about its intentions, it makes no sense to say courts should defer to its wishes.

Elena Kagan's self-professed judicial "modesty" thus does little to inform us about how she would judge. Because her sparse record gives so few additional clues, Congress should hold her to the standard she once articulated as a law professor and engage her substantively on legal issues before confirming her to a lifetime seat on the nation's highest court.

US v. Skilling - PointOfLaw Forum

The Supreme Court unanimously agrees "honest services" law unconstitutionally vague, and votes 6-3 to limit it. [Skilling v. United States; NYT; WSJ; SCOTUSblog; Ribstein; Bainbridge; Fisher @ Forbes; Sandefur; Kirkendall; Hurt]

Will Bruno Walk? - PointOfLaw Forum

A federal judge sentenced former New York Senate leader Joseph Bruno to two years in prison last Thursday, and then suspended the sentence pending the outcome of a trio of U.S. Supreme Court cases challenging the notoriously vague "honest services" law under which Bruno was convicted.

Like the case against Bruce Weyhrauch, the former Alaska lawmaker whose appeal the Court heard last fall, the case against Bruno is based on his failure to disclose conflicts of interest which he had no duty to disclose under state law. But unlike Weyhrauch, Bruno wasn't merely shopping his resume around for a job; he was collecting millions of dollars in "consulting" fees from companies with interests before the New York Assembly.

Bruno is a genuinely a shady character, so it is unfortunate, in a way, that he will likely get off scot-free when the Supreme Court sharply limits or strikes down the honest services law, as it should. But the state of New York has only itself to blame for failing time and again to enact ethics rules that require disclosures of conflicts of interest such as those that Bruno concealed. Public disclosure can neutralize improper influence, and many other states have ethics rules that require it.

Vague statutes and politically driven prosecutions have been hallmarks of the law enforcement-oriented approach to political malfeasance. The New York Assembly should instead experiment with more sunshine. By enabling the voters to decide what kinds of conflicts they are willing to tolerate from their politicians, disclosure laws can reduce political corruption with fewer side effects than vague prohibitions that even judges can't define.

An "honest services" paradox - PointOfLaw Forum

Under the controversial "honest services" branch of fraud law, executives can be exposed to criminal prosecution for conduct that wouldn't expose them to civil sanctions for breach of fiduciary duty. [Lisa L. Casey (Notre Dame), SSRN, via Larry Ribstein]