Is Dolan a Clue to the Upcoming “Honest Services” Decisions?

We’re still waiting to hear how the Supreme Court decides the trio of cases on “honest services” fraud.  In the meantime, we’re wondering if yesterday’s Dolan decision might be a harbinger of what’s to come.

In Dolan, the Court was dealing with a vague statute.  It left out a crucial statement of what ought to happen if the court missed a deadline.  They could have sent it back to Congress to specify what ought to happen.  After oral arguments, during which both the progressive Stevens and the formalist Scalia seemed inclined to do just that, we figured it was probably going to happen.  But we figured wrong. 

Instead, the Court split 5-4, not on ideological lines, but on seniority.  The five most junior justices agreed to craft their own remedy language for the statute, based on what they felt the general purpose was supposed to be.  The four more senior justices wanted Congress to amend the statute itself, and pointed out that the juniors’ interpretation actually undermined the existing language already in the statute.

We wonder if we’re going to see a similar split (and similar strange bedfellows) in the “honest services” cases of Black, Weyrach, and Skilling.

Honest services fraud was originally a court-created crime, which in 1987 the Supremes found to be unconstitutionally vague — so vague as to violate Due Process.  Congress responded by passing the current statute, which is barely any more specific.  Nobody knows what it means.  It can mean anything.

Back in December, during oral arguments for the Black and Weyrach cases, the justices seemed to be unanimous in their dislike of the statute.  They ignored the specific issues of the cases before them, and focused on whether the law itself was unconstitutionally vague.  That led to the Skilling case getting advanced on the calendar, with oral arguments again signaling a unanimous disapproval of the statute.

So we wrote a nice piece wondering if we’ve “finally seen the end of honest services fraud.”  It seemed at the time that the Court would just find it unconstitutionally vague, and force Congress to draft it over again, and do it right this time.  We even suggested how it ought to be rewritten.

But now, after Dolan, we’re not so sure.  Could it be that the junior justices might again jump in and interpret language into the statute that doesn’t exist, to prevent it from being tossed back to Congress?  (And not that it matters, but will Thomas, being the most senior of the five, assign the opinion to himself?)

How would that work out, we wonder?

Here’s what the statute currently says:  “For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.”

We suspect they’d read the words “for private gain,” or something like that, at the end of the sentence.  That would at least make it more like, you know, fraud?

Of course, Congress intended the law to apply to government officials and corporate leaders, who abuse their position.  So perhaps the juniors might read that into the statute as well.  The law would only apply to government, corporate or other officials.  And “depriving of honest services” would mean abusing or mis-using a position.

That would effectively be a judicial rewriting of the statute to be about “a scheme or artifice by a government official or by an officer of a corporation, partnership or other organization, whereby such official or officer’s position is used for the private gain of any person.”

That’s pretty much what Congress meant to say all along. 

Still, we’d rather have the Court stay away from such judicial legislating.  They really ought to declare the damn thing unconstitutionally vague, and make Congress do it right.