The U.S. Supreme Court issued its long-awaited opinion today in Skilling v. United States, and, in so doing attempted to clarify its view of the Honest Service Fraud (HSF) statute. While the Court certainly narrowed the reach of HSF to the realm of "bribery and kickback schemes", it emphatically stated the law was constitutional (page 9):
Interpreted to encompass only bribery and kickback schemes, [the HSF statute] is not unconstitutionally vague. A prohibition on fraudulently depriving another of one’s honest services by accepting bribes or kickbacks presents neither a fair-notice nor an arbitrary-prosecution problem.
The decision to uphold HSF as constitutional was decided on a 6-3 vote, with Chief Justice Roberts and Justices Alito, Breyer, Ginsburg, Sotomayor and Stevens forming the majority. Justice Scalia authored the dissent and was joined by Justices Kennedy and Thomas.
On the surface this seems straightforward. But what does the Supreme Court mean by "bribery and kickback schemes"? We're most interested in how the Supreme Court's ruling affects the retrial of Abramoff lieutenant Kevin Ring, so let's explore how today's ruling might affect that case.
Critics of the HSF statute have described the law as bribery-lite. Bribery is a very strict statute that is difficult to prosecute. Bribery requires the prosecution to show that a specific thing of value was exchanged for a specific official act -- a specific quid pro quo. On the other hand, HSF can be proven by showing that things of value influenced an official act.
When the SCOTUS says that HSF encompasses only "bribery and kickback schemes", did the SCOTUS intend for the standard to be the more difficult bribery statute quid pro quo? Or is the old HSF briberyesque definition which doesn't require the quid pro quo sufficient? It appears to the ACR Blog that the old HSF briberyesque definition is still the law. On page 49 of Skilling, the Supreme Court approvingly cites U.S. v. Kemp (2007). Kemp finds the following jury instruction to accurately describe HSF law (page 37):
[W]here there is a stream of benefits given by a person to favor a public official, ... it need not be shown that any specific benefit was given in exchange for a specific official act. If you find beyond a reasonable doubt that a person gave an official a stream of benefits in implicit exchange for one or more official acts, you may conclude that a bribery has occurred. [Ellipsis in original]
When it comes to the "stream of benefits" or "retainer" theory of HSF, SCOTUS seems to have decided in Skilling to leave the key provision of the old HSF law intact. Of course we do not have a J.D. degree, but it is the opinion of the ACR Blog that Skilling provides no relief for Mr. Ring or many of the other defendants who have pled guilty to HSF charges in the Abramoff scandal. We are sure, however, that Mr. Ring's defense team at Miller Chevalier will zealously present the opposing viewpoint before U.S. District Judge Ellen S. Huvelle, and we look forward to reading the defense's briefs.
An unlikely Abramoff apologist seems to have missed these crucial details. Of course, this individual has consistently predicted that the SCOTUS would strike down HSF in its entirety. The right-of-center Washington Times provides a more balanced perspective, as they included this insightful commentary:
But after the court's ruling, New York lawyer Terrence Oved said the decision will not have any effect on the cases emanating from lobbyist Jack Abramoff's conviction and cooperation, as those cases involved bribes and kickbacks. Similarly, he said, the Blagojevich trial is unlikely to be affected as his case also involves bribery and the jury will be able to receive instructions that take the decision into account. The judge in the case had previously said the Skilling decision was unlikely to help Mr. Blagojevich.
Some readers were predicting - hoping? - that HSF would be declared unconstitutional, but today's 6-3 ruling leaves the most essential provisions of the law intact. Yes indeed, Scalia dissents!