"Honest services fraud" may be a new term to you, but it is a real crime that can lead to serious time. Honest services fraud is defined in 18 U.S.C. § 1346, as follows:
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.
This public corruption law makes it illegal for public officials or private individuals to be disloyal to or dishonest with their constituents or employers.[1]
As Senator Biden stated, when he introduced this statute as an amendment to the Anti-Corruption Act of 1988:
Mr. President, I am pleased today to join with my colleagues in introducing the Anti-Corruption Act of 1988. . . . This bill will make it possible, once again, to prosecute and send to prison those public officials who corrupt their offices and betray the trust placed in them. It reverses the McNally case by creating a new public corruption statute that will be used to bring charges against anyone who attempts to deprive the citizens of the United States or of any State of the honest services of a public official, or against anyone who attempts to corrupt the election process.
134 Cong. Rec. S12581-04 (daily ed. Sept. 16, 1988) (statement of Sen. Biden) (emphasis added by Frega court ruling: Frega, 179 F.3d at 802, n.7)
The McNally case Biden referred to was the Supreme Court case, McNally v. United States, 483 U.S. 350, 356 (1987). In that case, the Supreme Court declared the mail fraud statute "protects property rights, but does not refer to the intangible right of the citizenry to good government."
The honest services fraud statute was specifically enacted into law by Congress to directly counter that decision.[2] Everyone was clear on that point. [3]
This statute is extremely powerful. Since 2004, this statute has been used 30 times and guilty convictions were obtained 27 times. One case is still going through the appeals process.
Who are some of the people sent to prison with this? Good question.
The list includes:
* GOP lobbyist Jack Abramoff
* IL Gov. George Ryan
* Newspaper magnate Conrad Black
* Enron CEO Jeffrey Skilling
IL Governor Blagojavich got busted on this charge.[4] Cardinal Roger Mahony, the archbishop of the nation’s largest archdiocese, is looking down the barrel of this gun because of ongoing investigations into the Catholic Church's covering up sexual abuse scandals. [5]
You don't have to obtain monetary benefit to be guilty of honest services fraud. You just have to defraud people of their right to honest services. This should be a wake-up call to any Senator (I'm looking at you Judd Gregg) who thinks they can prevent legitimate business from going forward because
"[The] Senate operates on a presumptive quorum of 51 senators and quorum calls are routinely dispensed with by unanimous consent. If UC is not granted to dispose of a routine quorum call, then the roll must continue to be called. If a quorum is not present, the only motions the leadership may make are to adjourn, to recess under a previous order, or time-consuming motions to establish a quorum that include requesting, requiring, and then arresting Senators to compel their presence in the Senate chamber." [6]
And Gregg's not the only one. Lieberman has so many examples of fraudulent claims to point to, I'll just pick one. How about his resistance to the public option even though he represents a state that already has one? You could probably come up with a half-dozen examples of Dr. Tom Coburn denying honest services to constituents as well. Disrupting the business of the Senate from the inside isn't the only place where people are being deprived of their rights to honest service in government. Let's talk about the people paid to disrupt townhall meetings.
Of course, some may fret "but what happens if Republicans get majority control, won't they use this as a weapon against Democrats?" The answer is "Of course. Rove did that for years!" [7] What do you think helped put Alabama governer Siegelman in prison? He is currently out on bail, seeking to overturn the case on appeal based on prosecutorial misconduct. [8].
The people who got in trouble over this law? The district attorneys that wouldn't abuse this law were the ones Rove had fired. I don't know what the statute of limitations is on this sort of thing, but if I was Monica Goodling, I'd be thinking if this might apply to people who "cross the line" as she so politely put it. And speaking of former administration officials, let's not forget Cheney admitting he knew he was taking us to war on false claims. [9]
If you think this approach could trigger a fight, let me remind you we have been at war for a long time. Everyone agrees that corruption is a pervasive and corrosive problem in our political system. If we aren't going to use every legal means at our disposal to defeat the enemies of change, then why bother fighting at all?
Now that they are out of power, don't expect Republicans to leave this tool laying around for the day Democrats grow a pair. It doesn't matter this law has been on the books for 20 years and was only abused by Rove and his minions. Activist judges like Antonin Scalia have explicitly stated their intention to legislate from the bench by overturning this Congressional reversal of a prior Supreme Court ruling. [10]. In fact, the Roberts court has taken the unusual decision to hear three cases that will give them a shot at this. Two will be heard this week. [11]
I'm not advocating malicious prosecutions, prosecutorial misconduct, or coercive practices. All I'm saying is if someone is beating the crap out of you and you don't use every legal tool available to defend yourself, then don't complain when you get hurt