We’re all guilty

The U.S. Supreme Court on Thursday sharply curtailed the use of an anti-fraud provision that has been used to convict numerous politicians and corporate executives in many of the nation's most prominent corruption cases.

The justices voted 6-3 to keep the law in force, even as they joined unanimously in weakening it, leaving it to a lower court to decide whether Jeffrey Skilling, the former Enron boss, and Conrad Black, a former newspaper owner, should have their convictions stemming from supposed "honest services" fraud overturned.

But Donald Ayer, a Washington lawyer who represented former Alaska lawmaker Bruce Weyhrauch in a similar case, said the ruling will put the brakes on prosecutors' increasingly aggressive and creative efforts to win convictions under the 28-word fraud law that makes it a crime "to deprive another of the intangible right of honest services."

Good.

In the private sector, clearly defined laws already outlaw theft and fraud. As Gary Chafetz, author of a book about lobbyist Jack Abramoff, points out, "honest-services fraud" is a term "that no one seems able to define without using 'honest-services' in its definition. Which a priori implies that because it cannot be defined, it is unconstitutionally vague. ...

"Who has not failed to provide his or her honest services as a friend, lover, father, mother, husband, wife, brother, sister, co-worker, boss, or subordinate?" Mr. Chafetz asks. "Hence, private honest-services fraud is a universal crime, of which every man, woman and child is guilty. A dispute between a contractor and a homeowner -- ordinarily settled in civil court -- may be a federal felony, private honest-services fraud, punishable by five years in prison ... or both. ...

"Essentially, honest-services fraud makes prosecutors omnipotent, because they can charge anybody they want with a federal felony. ... "

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, worries the decision "deprives prosecutors of an important tool in their efforts to fight public corruption. Previous convictions may be vacated and corrupt officials will have an easier time escaping accountability for their misdeeds."

Oh, no! Police and prosecutors will actually have to prove their cases with, like, evidence?

The court, in an opinion written by Justice Ruth Bader Ginsburg, said prosecutors may continue to seek "honest services fraud" convictions in cases where they have evidence that defendants actually accepted bribes or kickbacks.

"Because Skilling's misconduct entailed no bribe or kickback, he did not conspire to commit honest-services fraud under our confined construction" of the law, Justice Ginsburg said. Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have gone further, tossing out the law as entirely unconstitutional.

Some offenses are hard to prove. That doesn't mean we should tolerate laws so vague as to make everyone guilty, allowing prosecutors to pick and choose which of us to go after. Corruption should not go unpunished, but no citizen is safe when Americans can be jailed for a "crime" so poorly defined.