Houston is one of my favorite cities—I have relatives there, one of whom is a petroleum engineer; the city has the best barbeque in the world, and some of my favorite baseball memories come from Astros games at the former Enron Field. As such, it’s no surprise that I don’t like Jeff Skilling, one of the principle culprits of the Enron collapse and the subsequent economic downturn of Houston.
Nevertheless, I spent Monday morning rooting for team Skilling as the Supreme Court heard the oral arguments for Skilling v. United States. According to the brief filed by the O’Melveny & Myers attorneys that represent Skilling, the case pivots on two issues. One was whether Skilling received a fair trial. Should the jury screening process have been more intense? Should the case been have been heard in a different city altogether? And the second issue is whether one of the statutes under which Skilling was prosecuted—the Honest Services Fraud statute—is unconstitutionally vague.
It is this second point that elicited my support. The Honest Services Fraud statute refers to the 1988 addition to the mail- and wire-fraud statute: “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.”
According to Shana Regon of the National Association for Criminal Defense Lawyers, “The Honest Services Fraud statute is only 28 words and no one knows what it means.” And Noel Fancisco of Jones Day claimed at a recent legal conference that the statute seems to have come out of Soviet Russia because it’s a catchall law that allows anyone to be prosecuted.
These points really hit home when I learned that even I, a law-respecting, patriotic American, could be prosecuted under the statute for simply spending a few minutes of my workday to check my e-mail, look up NBA stats, or listen to pop-singer Ke$ha’s new song “Tik Tok.” After all, by doing so, I would be depriving my employer of my full services.
I doubt that our legal system would waste its time with my hypothetical violation, but just the fact that it could is upsetting to many, including me. And this is why the Supreme Court has heard three cases in the past months on the statute: United States v. Conrad Black, Weyrauch v. United States, and today’s Skilling case.
Prior to today, a constitutional overturn of the statute looked promising. Last Friday, The Federalist Society hosted a press conference at which Tim O’Toole of Miller & Chevalier said he “can’t count a single vote that the government is going to get,” but if it were to get one, then it would be Justice Stevens. And Bill Otis, a professor at George Mason Law School thought that the statute would either be ruled unconstitutional or would be restricted to bribes and kickbacks.
Accordingly, I predicted an 8-to-1 ruling at fantasyscotus.net, looked forward to the demise of the Honest Services Fraud statute, and rested easy knowing that Skilling would still serve 20-plus years, even without Honest Services violations against him. Win-win-win.
Unfortunately, instead of launching into a relentless assault of the statute, the court spent most of its time addressing the partiality of the jury. According to Cato Institute Senior Fellow Ilya Shapiro, “Justice Breyer read extensively from the trial record to express his concern about the inadequate measures the Houston court had taken to properly remove biased jurors.” The Court touched upon the Honest Services Fraud statute, but far more important were comparisons to the jury bias in the trial of Oklahoma City bomber, Timothy McVeigh, and whether it was possible for an entire city (in this case, 4.5 million people) to be biased.
This shift in emphasis reflects a growing trend of the Roberts court to sidestep main constitutional issues. But not all is lost, coupled with the Black and Weyrauch cases, the Court has dedicated significant time to the statute—enough to warrant its unconstitutionality (as it should).
Stephen Richer is the Director of Outreach at a Washington, D.C.-based legal think tank.