Honest Services Fraud



On Tuesday, December 8, 2009, the Supreme Court heard oral arguments in two high–profile “honest services” fraud cases, Conrad M. Black v. United States and Bruce Weyhrauch v. United States. On March 1, 2010, the Court will hear argument in a third honest services case, Jeffrey K. Skilling v. United States. In his often–quoted dissent from denial of certiorari in Sorich v. United States, Justice Scalia wrote: “If the ’honest services’ theory ... is taken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection [and] a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation .... Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.” NACDL is deeply concerned by the vagueness and federalism problems of 18 U.S.C. §1346, the “honest services” statute. Due process requires that a criminal law give fair warning, at the time of the offense, of what conduct is prohibited, and therefore NACDL has filed amicus briefs in all three of the above cases arguing that the law is unconstitutional. Those amicus briefs can be found here: Conrad M. Black v. United States, Weyhrauch v. United States and Skilling v. United States.

We invite you to learn more by viewing “Legislating Chaos: Has Congress Made Playing Hooky a Federal Crime?”, an NACDL and Heritage Foundation jointly-sponsored program recorded on December 7, 2009, featuring Timothy P. O’Toole of Miller & Chevalier (Counsel for Defendant, United States v. Kevin Ring), John D. Cline of Jones Day (Amicus counsel for NACDL, Skilling v. United States), Thomas A. Hagemann of Gardere Wynne Sewell (Counsel for Defendant, United States v. Brown et. al.) and moderated by Shana–Tara Regon, Director of White Collar Crime Policy for NACDL.

We also invite you to view “Honest Services Fraud before the Supreme Court: What to Expect and What is at Stake,” an NACDL and Washington Legal Foundation jointly-sponsored program recorded on December 2, 2009, featuring Jonathan Marcus of Covington & Burling (Amicus counsel for NACDL, Conrad Black v. United States), Richard Craig Smith of Fulbright & Jaworski (former Acting Chief and Principal Deputy Chief for Litigation, DOJ Fraud Section), Brady Dugan of Akin Gump Strauss Hauer & Feld (former Asst. U.S. Attorney, DOJ Antitrust Division), and moderated by the Honorable Richard Thornburgh of K&L Gates (former United States Attorney General).

These events served as valuable resources for the significant media attention to this important matter, coverage which yielded hundreds of news stories in the news cycles during and following the arguments. A few examples include, NACDL Board Member Timothy O’Toole, who was a panelist at the December 7, 2009, NACDL/Heritage co-sponsored event on Capitol Hill, who appeared on December 8, 2009, on American Public Media’s public radio program, “Marketplace” on the subject of the Honest Services Fraud cases argued before the Supreme Court that day (“SC could scale back anti-corruption law”). In a McClatchy story, appearing in papers from Seattle to Miami, NACDL’s White Collar Crime Policy Director Shana-Tara Regon pointedly explained that “The statute is 28 words, and no one knows what it means.” (“Piece of ex-Alaska Rep. Weyhrauch's case goes to Supreme Court”) And NACDL member Bill Mateja penned an Op-ed in the Dallas Morning News, “Supreme Court should void 'honest services'” in which he also discusses NACDL’s important coalition work: “To this end, Congress heard testimony last summer from strange bedfellows who have formed a coalition to bring ‘overcriminalization’ to lawmakers' attention, namely, the American Bar Association, American Civil Liberties Union, Cato Institute, Constitution Project, Federalist Society, Heritage Foundation, National Association of Criminal Defense Lawyers, and Washington Legal Foundation.”

After decades of federal enforcement of the “honest services” statute, the recent and focused attention of the Court, lawmakers, media, and the public will hopefully generate long-overdue reform.


National Association of Criminal Defense Lawyers (NACDL)
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