Justice After Skilling by Scott Horton

[Jefferson23]

Oct. 1, 2010

In the Skilling (PDF) case, the Supreme Court, moved by a skeptical view of the Justice Department’s use of “honest-services theft” theories to prosecute corruption cases, sharply hemmed in the practice by saying that the statute only covered “bribes and kick-backs.” Three of the justices, Scalia, Thomas, and Kennedy, would have gone much further. Indeed, during oral argument several of them took the Justice Department to task for its at times attenuated interpretations of the statute, with Kennedy arguing that the Department’s take would criminalize roughly half the governmental workforce. In rendering their decision, the Court was plainly inviting the Justice Department to rethink its overreaching stance—just as it suggested that a significant number of convictions the Department had secured had to be reviewed—and a large number of them will certainly be set aside. I’ve been studying this issue for some time, and–while I would have come out with Scalia, Thomas, and Kennedy–I think the Court hit the mark with its ruling.

The Justice Department, however, has responded with wails of denial and by pressing Congress to overturn the Skilling decision. Doing the Department’s bidding, Judiciary Chair Patrick Leahy has offered a new bill, the “Honest Services Restoration Act,” which would allow the prosecution of “undisclosed self-dealing.” It was the subject of a Senate Judiciary Committee hearing on Tuesday.

Ranking Republican Jeff Sessions immediately exploited the absurdity of the fix. The Supreme Court came close to striking the old statute entirely because of its hopelessly vague language. So the fix is to outlaw “undisclosed self-dealings?” “That’s a pretty broad statute, it really is,” Sessions noted. Indeed, Leahy’s bill is even vaguer than the original statute. He and the Justice Department are demonstrating a stubborn refusal to take the guidance that the Supreme Court has offered.

Assistant Attorney General Lanny Breuer appeared at the hearing to press the Department’s case for restoration of powers. “One of the tools that we have relied upon for more than two decades was significantly eroded,” Breuer stated. He asked for enactment of the new bill to “fill the gap.”


remainder: http://www.harpers.org/archive/2010/10/hbc-90007664