Back at Black: Honest Services . . . indeed!

December 8, 2009

A number of reporters have asked me about the so-called "honest service" fraud on which U.S. v. Conrad Black et al. was indicted, convicted, and which now serves as the basis for his appeal before the United States Supreme Court.  I reprint below the verbatim applicable sections:


§ 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

§ 1346. Definition of "scheme or artifice to defraud" 
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.

Although I do not defend Defendant Black's conduct as alleged in the Indictment, and while I frankly find much of his conduct reprehensible, nonetheless, I am deeply troubled by the vague and overly elastic language that forms the basis of his conviction.  For a statute to define as fraudulent an act that deprives another "of the intangible right of honest services," strikes me as so vague as to be void.  Moreover, the drafting is such a bizarre example of circular logic that I can hardly imagine that its passage into law was not accompanied by much laughing and elbowing in the ribs. Alas -- so much for those entrusted with drafting and passing our laws.

Come to think of it, since few elected officials appear to deliver honest services, perhaps we simply need to cast a wide net and round up the malfeasors and nonfeasors in government who plague us?  Now that would be a fine application of this law!