Honest service fraud in the news

The Department of Justice’s recent, well-publicized crackdown on lobbyists and public officials who have accepted favors from them has played to generally good reviews and produced a series of guilty pleas. Under a bill approved recently by the Senate Judiciary Committee to authorize $100 million for new public corruption prosecutors and agents, we can expect to see even more indictments and guilty pleas.

When a public official is alleged to have received bribes or kickbacks and then acted to benefit the person making the payment, finding that the public has been defrauded of the official’s honest services is not controversial. But the recent reliance of prosecutors on the honest services fraud statute in cases where the benefits provided to the government official are not illegal is alarming, and it should trouble government officials and all who work with them.

If the Supreme Court is unwilling to consider the issue at this time, Congress must revisit the honest services statute to provide prosecutors and the public with clear guidelines about permissible activities. While this murkiness may prevent some bad actors from evading prosecution, it also may deter many others from exercising their constitutionally protected rights and, even worse, force others to defend perfectly appropriate conduct in federal court.

Published by Politico on 3/24/2009. The authors are partners in the law firm DLA Piper. Peter Zeidenberg is a former prosecutor in the Department of Justice’s public integrity section. William Minor leads the firm’s political law practice.