U.S. Supreme Court justices of all stripes appeared sharply critical on Tuesday of the federal law that makes it a crime to "deprive another of honest services," leaving the often-used prosecutorial tool in serious doubt.
Justice Stephen Breyer ridiculed the law's language as so broad that as many as 140 million of the nation's 150 million workers would violate it with offenses as minor as telling the boss falsely that they like his hat.
Justice Antonin Scalia, a longtime critic of the law, analogized it to a law that says "Nobody shall do bad things." He asserted that it is not the job of the Court to give the law definitions or parameters that would make it constitutional.
Chief Justice John Roberts Jr. also piled on, saying that the public "has to be able to understand the law, and if it can't, it is invalid."
The comments came during oral arguments in two cases testing the 21-year-old law: Black v. U.S., involving media mogul Conrad Black, and Weyhrauch v. U.S., brought by former Alaska legislator Bruce Weyhrauch. Both were convicted under the law.
It was a busy day at the Court, with justices issuing four opinions, including the first authored by new Justice Sonia Sotomayor. As is customary with new justices, she was assigned a unanimous opinion, though Justice Clarence Thomas wrote a separate concurrence. The Court did not issue the long-awaited ruling in the campaign-finance case Citizens United v. Federal Election Commission, which was re-argued in a special session on Sept. 9. Next Monday will be the final sitting of the Court before year's end, and the decision could come down then.
The "honest services" law has been attacked by liberals and conservatives alike as an example of "overcriminalization" and the tendency of Congress to outlaw activities that are already covered by state laws, giving federal prosecutors too much power.
The two cases argued Tuesday will be supplemented by a third challenging the same law, brought by former Enron executive Jeffrey Skilling, which will be argued next spring. Justices made numerous references to the Skilling case Tuesday, suggesting the possibility that the Court may wait until it is argued before ruling in the Black and Weyhrauch cases.
Defending the statute against the double-barreled assault on Tuesday was Deputy Solicitor General Michael Dreeben, the longtime expert on criminal law in the solicitor general's office. He made a forceful defense, arguing that a body of precedent has given meaning to the statute, in spite of its broad language, limiting it to cases of kickbacks, bribery and undisclosed conflicts of interest. But justices did not seem to buy his assertions, picking apart what constitutes a conflict of interest, and challenging Dreeben to point to clearly articulated limits that can be placed on the scope of the statute.
Breyer said he can boil down the meaning of Sherman Act to two words -- price-fixing -- and asked whether the honest services law could be similarly summarized. "I think I have got it down to around eight," Dreeben said, but the justices seemed unconvinced.
One sign that the justices were unsympathetic to the government's case is that they asked almost no questions about the underlying allegations or crimes the government was trying to punish by prosecuting Black and Weyhrauch.
Fanning the discontent among justices were two veteran Supreme Court advocates. Miguel Estrada of Gibson, Dunn & Crutcher represented Black, labeling the law at issue "vague, amorphous, open-ended and, essentially, not very helpful."
Estrada offered a way to limit the scope of the law, but Scalia and others seemed more interested in striking it down altogether.
Donald Ayer of Jones Day argued for Weyhrauch, whose prosecution was based on his failure to disclose that he had sought a job from an oil company whose interest he favored in a vote on a tax increase.
Ayer asserted that Weyhrauch had no obligation under Alaska law to make the disclosure, and should not be held to a vague federal standard. "Most of the duties that a state official owes are state law duties," Ayer said. By invoking the federal honest-services law, Ayer added, the federal government was "injecting itself into the relationship of state officials with their citizens and their government."