Thursday, June 24, 2010

Interpretation or Invention - Key Aspects of the Honest Services Portion of the Skilling Opinion

Check out the prior posts of Solomon Wisenberg here, here, and here, that include summary and links to the three decisions. Looking at Skilling specifically, here are some important items to note from the decision-

1. As discussed by Attorney Tim O'Toole in an NACDL press conference - the Court rejects the government's attempt to include a third category beyond bribery and kickbacks, that category being "undisclosed self-dealing by a public official or private employee."

2. The Court states - "The 'vast majority' of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes."

3. The Court states - "Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine."

4. Is it judicial legislating when the Court states in footnote 43 - "Apprised that a broader reading of §1346 could render the statute impermissibly vague, Congress, we believe, would have drawn the honest-services line, as we do now, at bribery and kickback schemes."

5.Footnote 45 - the Court tells Congress if it really wants to include "self-dealing" there needs to be a whole lot of questions examined first.

6.  The Court says, "Its prohibition on bribes and kickbacks draws content not only from the pre-McNally case law, but also from federal statutes proscribing—and defining—similar crimes. See, e.g., 18 U. S. C. §§201(b), 666(a)(2); 41 U. S. C. §52(2)." John D. Cline noted in the NACDL Press Conference how the Court used section (b) of the bribery statute, but did not include (c) which is the gratuities section.

7. The Court says in footnote 46 that "[o]verlap with other federal statutes does not render s1346 superfluous." The Court then notes how section 201 only applies to federal public officials. What about section 666, a section they mentioned previously (see note above)

Concurring opinion of Scalia, Thomas and Kennedy -

1. They say - " in transforming the prohibition of honest services into a prohibition of 'bribery and kickbacks" it is wielding a power we long ago abjured: the power to define new federal crimes."

2. In speaking to the Court's allowing bribery and kickbacks to remain within the statute, the three justices state that "arriving at that conclusion requires not interpretation, but invention."  They later remark - "the Court today adds to our functions the prescription of criminal law." They also state "that is a dish the Court cooked up all on its own."

(esp)(blogging from Lisbon, Portugal)

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