What Are Honest Services?

No one can seriously doubt that we live in a time sadly memorialized by the dishonesty and hypocrisy of public officials. Is prosecuting them under an "honest services" statue effective?
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Francois de Callieres was a diplomat in the court of Louis XIV with a gift of prescience. His seminal work, "The Practice of Diplomacy," written in 1716 was a textbook in the art of negotiation. Admired by Thomas Jefferson, Callieres won high marks from Saint-Simon, himself no slouch of a diplomat, as someone who always spoke truth to power.

Callieres well understood that the state must not be deprived of its intangible right to the honest services of its officials. He knew that an ambassador, for example, must render honest services to the sovereign and be liked and trusted in the country where he resides since it is by his honesty that he gains the confidence of official circles. But, who would have thought that there might be a question as to what are honest services? Don't we know it when we see it?

No one can seriously doubt that we live in a time sadly memorialized by the dishonesty and hypocrisy of public officials. Connecticut Attorney General Richard Blumenthal in statements to voters in the course of his U.S. Senate campaign couldn't seem to get his military record straight. New York Senate Majority Leader Joe Bruno stands convicted of reaping millions in fees from persons seeking to do business with the state. Former Illinois Governor Rod Blagojevich has asked the Supreme Court to delay his June trial on pervasive racketeering, bribery and extortion charges, arising in part from his alleged attempt to sell the Senate seat vacated by President Obama. Blagojevich wants to stay the trial, pending a ruling in three cases now under consideration by the Court on whether a federal law criminalizing a scheme to "deprive another of the intangible right of honest services" is unconstitutionally vague. The law is often used to prosecute corporate executives and politicians alleged to have defrauded their employers, shareholders or constituents. Blagojevich is charged in 12 counts with deprivation of honest services, but these are only half of the 24 crimes of which he stands accused.

The challenge to the "honest services" statute first reached the Supreme Court in 2009, when three Chicago City employees were convicted for depriving the City of their honest services. The Court declined to hear the case, but Justice Scalia, dissenting from the denial of certiorari, took the opportunity to write a scathing critique of "honest services" fraud. Likening the statute to a law that vaguely says "anyone who does something wrong commits a crime," he saw that the statute had been "invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials but also by private employees and corporate fiduciaries." He went on:

"If the 'honest services' theory--broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers--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; a mayor's attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee's recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate office. Indeed, it would seemingly cover a salaried employee's phoning in sick to go to a ball game."

It looks as though the Supreme Court will invalidate the honest services law in the three pending cases. At oral argument, conservatives Chief Justice Roberts and Justice Scalia appeared to agree with liberal Justice Breyer that the law does not really give fair notice as to what is criminal. As though in tandem, Chief Justice Roberts and Justices Scalia and Breyer recited what they called a fundamental principle: that the public must be able to understand what a criminal law means. "If it can't," Chief Justice Roberts said, "then the law is invalid."

So what is the meaning of the phrase "honest services?" It could apply to almost any form of bad conduct by a public official and to business fraud as well. Two of the three Supreme Court cases involve Enron president Jeffrey Skilling, and newspaper tycoon Conrad Black. Both men were convicted of denying their shareholders "honest services."

Eight term Congressman Mark Souder, Republican of Indiana, vigorously preached teen sex abstinence. The only problem was that he had a strawberry blonde mistress, who happened to work part time in his district office. It turns out that the married Congressman and the mistress had congress in state parks and boat launches. And, the attractive mistress even interviewed him on a promotional video about the importance of sexual abstinence. Souder resigned, but could he conceivably be charged criminally for denying his constituency his honest services as a public official?

Then, there is George Rekers, a professional expert witness on homosexuality, who has testified in cases involving same-sex marriage and gay adoption that gay people raise troubled children. It turns out that Rekers allegedly took a 10-day trip to Europe with a male prostitute whom he apparently met through a website known as rentboy.com. Rekers is surely discredited as a witness. But can it be that he might be prosecuted for depriving the courts and his clients of his honest services as an expert? The law is, as Mr. Bumble said, "a ass."

Which brings us full circle back to Callieres, who demanded honest service from public officials. He would certainly have been appalled at the alleged conduct of Bruno, Blagojevich and the rest. But what would he have said about prosecuting them for fraudulent denial of the public's intangible right to their honest services? I suspect he would have been astounded.

James D. Zirin is a New York lawyer. He contributes op-eds and book reviews to various national publications. This one first appeared at Forbes.com

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