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Reaching, or waiting, for a constitutional issue


The Supreme Court normally is not eager — far from it — to decide a constitutional question; its traditions suggest hesitancy in using that ultimate power.  But on Tuesday, the Court seemed quite impatient to ask, and answer, an issue of constitutionality: the validity of the 1988 law that is a vital government weapon against corruption — the “honest services fraud” law.

It seemed, however, that there could be a scheduling problem: should they wait until March, to see if it is properly raised in a case then, or should they tell lawyers sooner to come up with the arguments in one or both of the cases just heard: Black et al. v. U.S. (08-876) and Weyhrauch v. U.S. (08-1196)?  No one seemed enamored of a third option: act as if the issue is already before the Court in one or both of those cases, as presently composed.

It seemed evident, after two hours of oral argument Tuesday, that the Court had agreed to hear three cases this Term on the scope of the “honest services” law in order to make a major declaration about it, and perhaps go all the way to strike it down.  Justice Antonin Scalia reflected what appeared to be on the mind of most of his colleagues: “Why should I turn somersaults” to find a way to save the statute?

Of course, he has been the statute’s most vehement critic on the Court, but none of his colleagues rose to a defense of the law in the first two of the three cases to be heard on so-called “honest services fraud.”

The arguments in Black and Weyhrauch moved back and forth over what specific “honest services” are demanded by the mail fraud amendment adopted by Congress 21 years ago.  Is the law violated if a worker reads the racing form after misleading the boss into thinking he was actually working? What about playing hookey to go to a ball game? Or telling the boss you liked his hat when you really didn’t?  More broadly, might the law be so vague that 100 million workers might be violating it without knowing it?

Despite the best efforts of a government lawyer who argued in both cases — Deputy Solicitor General Michael R. Dreeben — to show that the law was not intended to reach trivialities, the Court seemed far from convinced of that.  “What’s the source, where do you draw the line, where do you look to see [what’s covered]?” asked Justice Sonia Sotomayor.  And her question was hardly unique.

So, the Justices wondered, if “the average citizen” cannot know what the law outlaws, can the law be constitutional?  And if that is the core question, is it before the Court now, or should it be asked explicitly, to give both sides a chance to focus directly on it?  Neither of the petitions for review in the two cases argued Tuesday poses the constitutional question (or, at most, does so only implicitly). But the third case, growing out of the Enron scandal (Skilling v. U.S., 08-1394), makes it a part of the first question the Court has agreed to hear.

The merits brief for Jeffrey Skilling is now due on Friday of this week, so the Court will know soon just how energetically the constitutional issue is pressed in that case.  Still, that case is not due to be argued until at least late March.  If the Court is determined to focus on the constitutional issue, it perhaps may not be prepared to wait that long.  But, in the meantime, it would not make much sense to go ahead and write opinions in Black and Weyhrauch pretending that the fundamental question is not lurking in each.  That, of courses, raises the prospect that further briefing might now be ordered in one of those cases.

Washington lawyer, Miguel A. Estrada, representing Conrad Black, a Canadian media tycoon convicted of failing to give “honest services” to his company, opened his by noting that lower courts had agreed that the law at issue was “fraught with” constitutional problems of vagueness and intrusion into state powers.  There was, he said, no solution that would provide an “elegant out” of the statute’s difficulty.  He thus was pressing an argument not made in the opening petition, but pursued energetically in the merits brief.

Justice Scalia immediately pressed to see if, in fact, Estrada was summoning up the constitutional question, and the lawyer said he was, that it was implicit in the question the petition raised.  Justice Anthony M. Kennedy also asked for clarification on what Estrada was arguing on the vagueness question.  And a question from Justice Samuel A. Alito, Jr., gave him a chance to spell out the constitutional problem he was arguing.

When other Justices wondered whether the statute could be read at least to criminalize bribes and kickbacks (a limiting suggestion made by the government), Justice Scalia said there was “no basis in the statute for limiting it to that.”  Soon after, Scalia was becoming more aggressive toward the statute, saying in response to Estrada’s suggestions for possible narrowing, “What if I think yhou don’t avoid constitutional problems?”  The lawyer responded that the Court should not go out of its way to save the law.

In reply to Chief Justice John G. Roberts, Jr., Estrada sought to show that Black’s counsel had raised the constitutional question in lower courts, and that it was “a predicate” for the challenge in the Supreme Court.  It was not raised before the Justices as a separate question, he conceded, adding that it need not be in order for the Justices to address it.

Government lawyer Dreeben opened his response by stressing the fact that the Black petition did not pose the constitutional question, and he told Scalia that perhaps the Court should wait, on that question, until some future case put the issue directly.   Justice Stephen G. Breyer then wondered if the Court should ask for further briefing explicitly on the constitutionality of the statute.  And Justice Sotomayor questioned whether that issue was going to come up in the Skilling case later in the Term.

Chief Justice Roberts said “it would be very unusual if in June we announced the opinion in your case agreeing with you [on the statute’s interpretation] and then the next case announced that the statute is unconstitutional.” Dreeben responded that he would prefer for the Court to uphold the law.

The constitutional issue got set aside, then, as the Court explored the source of Dreeben’s argument that what the statute covers is only “bribes, kickbacks, and undisclosed conflicts of interest by an agent or fiduciary who takes action to further that interest.”  That approach, he insisted, was well established in cases before Congress explicitly wrote the “honest services fraud” into the federal criminal code.  Dreeben strove to convince the Court that the statute was surrounded by limitations. “This statute does not establish a free-floating federal crime based on a breach of a trivial duty,” he argued.

Scalia had the last word, though. He bluntly told the federal lawyer: “You speak as though it is up to us to write the stattue.  We can make it mean whatever…would save it or whatever we think is a good idea, but that’s not our job.”

The Court moved on to the case of Bruce Weyhrauch, a former member of the Alaska legislature convicted of “honest services fraud” for soliciting for legal work a private firm while he was voting as a legislator on bills of interest to that firm.  Speaking for Weyhrauch, Washington lawyer Donald B. Ayer chastised federal prosecutors for trying to conjure up, in the 28 words of that fraud provision, a theory of criminality out of “extravagant language” in prior court rulings that the Supreme Court had rejected.

Most of his exchanges with the Court sought to explore just what kind of legal duty an accused individual would have to have failed to perform in order to be guilty of “honest services fraud.”  With each question and each answer, uncertainty spread over the potential range of that kind of fraud.  Ayer warned the Court of the extreme difficulty he foresaw if the Court were to undertake, on its own, to define what kinds of legal duties were being enforced under the rubric of “honest services.”

The looming constitutional issue did not come up during Ayer’s presentation, although he made passing references to the vagueness that he said was inherent in the “28 wonderful words” Congress had written to criminalize “honest services fraud.”

When Dreeben came to the lectern in this case, though, it did not take long for the constitutional question of vagueness to return.  When the government lawyer was attempting to describe what kind of personal “conflicts of interest” would violate the statute, Justice Breyer commented: “And this is supposed to be something that the average citizen…just knows all about.”

Soon, Breyer was conjuring up “comic examples” of what kind of conduct might be made criminal under this fraud provision.  Then, he said, one did not need only comic examples to show its breadth, because there might be “6,000 things” that could come within the law’s 28 words, and Dreeben had only picked out three: bribes, kickbacks and self-dealing conflicts of interest.

After Dreeben had attempted to defend those types of conduct as within the statute, Justice Scalia wondered why Congress did not adopt those specifics “instead of setting up this mush of language.”  What, Scalia asked pointedly, “is the citizen supposed to do?…If you have a principle that the citizen is supposed to know and he is violating a criminal statute, this is just too much.”

The Chief Justice made the same point, saying that, if a citizen cannot understand the law, then it is invalid.

A bit later, Scalia was on the attack again: “What is it that you are arguing for, that a law that is, on its face, inherently vague can, somehow, be rendered valid to the citizens by a decision of this Court?”

Near the end of Dreeben’s argument, Breyer asked whether the constitutional issue over the law’s supposed vagueness would come up in the Skilling case, since it was a part of the question presented there.   The lawyer said the government would have to see what Skilling’s lawyers said on the issue, before knowing how it would respond. But, he said, “the government is not shying away from the question of vagueness. The question of vagueness has been raised by members of this Court as a legitimate concern.  I think it’s a legitimate concern.”