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Supreme Court to take up anti-corruption law

Some say a ruling against the ban on 'honest services fraud' would take away one of the best weapons against public officials who use their positions to gain money, gifts or favors.

November 29, 2009|By David G. Savage

Reporting from Washington — The nation's most potent law against public corruption is in danger of being scaled back or struck down by the U.S. Supreme Court.

At issue is a ban on "honest services fraud," often used to prosecute public officials who accept money, free tickets, or jobs for relatives when bribery cannot be proved.

Patrick M. Collins, formerly a top anti-corruption prosecutor for U.S. Atty. Patrick J. Fitzgerald in Chicago, said that in his region, "every major public corruption case in the last 10 years relied heavily on an 'honest services' charge."

In Washington, anti-corruption activists fear that a ruling against the law could take away one of the best tools to combat the culture of favors and gift-giving between lobbyists and members of Congress and their staffs.

"It would undercut public corruption cases across the board," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington.

But opponents say that the law is ill-defined. It fails to spell out, for example, the point at which favors to a friend become a criminal scheme.

Julian Solotorovsky, another former federal prosecutor in Chicago, said that the court should strike down the law and force Congress to spell out what is a crime.

"There is no vaguer statute on the books than this one," he said. "I'm surprised it's taken 21 years to get this before the Supreme Court."

Many cases hinge on the high court's decision, but the most notorious is that of former Illinois Gov. Rod R. Blagojevich, a Democrat who is facing a federal corruption trial in connection with his alleged attempt to sell the U.S. Senate seat vacated by President Obama. His trial is set to begin in June.

"If the court were to gut the statute, the prosecution would have to think long and hard about how to restructure the case," Collins said.

In Washington, a judge has put off a retrial in a case involving Kevin Ring, a former congressional staffer who worked for lobbyist Jack Abramoff, until the Supreme Court rules on the law. A jury could not reach a verdict last month in a series of honest-services fraud charges against Ring.

In recent decades the Supreme Court has made prosecuting public officials more difficult.

In 1987, the court threw out the use of mail fraud statutes against a Kentucky official who doled out the state's insurance business to his friends, in part because there were no allegations that taxpayers had lost anything in the scheme.

Congress responded by passing a one-line amendment that says fraudulent schemes include those that "deprive another of the intangible right of honest services."

In 1999, the justices limited the reach of another law against giving "illegal gratuities" to public officials.

Bribing a public official is also a crime, but it's hard to prove. Prosecutors must show an explicit deal between the official and the person offering the bribe.

In the two decades since Congress passed the honest-services law, judges, prosecutors and defense lawyers have disagreed over what it means.

In February, Justice Antonin Scalia sounded off in dissent when the court let stand the convictions of Robert Sorich and two other Chicago city officials for having schemed to steer city jobs to campaign workers. There was no allegation that Sorich and his co-conspirators had received any money.

Scalia said this open-ended law "invites abuse by headline-grabbing prosecutors" who can turn a minor ethical lapse into a crime that carries a long prison term.

Honest-services fraud is so broad it "would seemingly cover a salaried employee's phoning in sick to go to a ballgame," he wrote.

Shortly afterward, the justices agreed to hear two appeals that call for paring back the law.

In the first, Conrad Black, the jailed newspaper executive, argues that he cannot be held guilty of honest-services fraud unless it can be shown that he intended economic harm to Hollinger International Inc., the company he once headed.

In Weyhrauch vs. the United States, a former Alaska legislator says that he cannot be found guilty of fraud for failing to disclose that he had sought work with an oil services firm before he left the Legislature. Republican Bruce Weyhrauch did not get a job with the firm, but he did cast a vote in favor of the firm's position on a tax bill.

Both cases will be heard Dec. 8.

Last month, the court went further and agreed to hear a claim that the honest-services fraud law should be struck down because it is unconstitutionally vague.

The appeal came from former Enron Corp. Chief Executive Jeffrey K. Skilling, who was convicted on multiple counts in connection with the now-bankrupt company's fraudulent accounting scandal. Skilling says he was trying to save Enron from collapse, not defraud its shareholders.

His case will be heard early next year.

david.savage@latimes.com

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