When a government or corporate official steals money from the public fisc or from their employer, it is clear that such conduct is and should be illegal. What if the official does not take anything tangible, but instead allows his or her private interests to affect his or her job performance? Is that a crime? If so, under what circumstances?
Historically, the Department of Justice used the mail fraud statute (perhaps the broadest of federal criminal statutes) to criminalize such conduct, arguing that it deprived the public or the corporation of “the intangible right of honest services.” In 1987, the Supreme Court put an end to that, holding that the mail fraud statute did not include the theft of intangible rights. Undeterred, Congress amended the statute expressly to include schemes to deprive “the intangible right of honest services.”
