(CN) – The Supreme Court on Tuesday heard two parallel challenges to a contentious anti-corruption law that collared former Illinois Gov. Rod Blagojevich and ex-lobbyist Jack Abramoff, on the grounds that the law is too vague to pass constitutional muster. The challenge was well-received in the high court.
At issue is the doctrine of honest services fraud, which is defined by 1988 legislation as requiring public and private officials to act in the best interest of their employers or constituents.
“Is that the system we have, that Congress can say, ‘nobody shall do any bad things?'” Justice Antonin Scalia asked, mocking the generality of the rule. “And it comes to this Court, and this Court says, bad things means bribery. And that law is a valid law, right?”
But bribery should be joined on the list with kickbacks and conflicts of interest that an official purposefully acts upon to cause harm, Deputy Solicitor General Michael Dreeben said in arguing against former Alaska House of Representatives member Bruce Weyhrauch and jailed media baron Conrad Black.
The government also challenged the notion that the law is too vague, urging simply that the Court interpret the provision. “You need clarifying judicial decisions that articulate the rights,” Dreeben said.
Weyhrauch – who was charged with not disclosing a conflict of interest when soliciting a job from an oil company while voting on an oil tax – was represented by Donald Ayer from Jones Day. He argued that there is no clear legal duty to disclose an “arguable” conflict of interest, dismissing the reach of the “honest services” legislation into his case.
And Miguel Estrada from Gibson, Dunn & Crutcher, whose nomination to the appellate court in the District of Columbia by former President George W. Bush, was terminated by a Democratic filibuster, represented media baron Black. He argued that Black could only be convicted if the payment agreement financially harmed the company, and said that the “honest services” provision used to level charges against Black is too vague, and therefore unconstitutional.
Justices appeared largely skeptical of the vague “honest services” measure and of the government’s interpretation, often mentioning how easily it can be used to ensnare officials.
Justice Stephen Breyer criticized what he characterized as the government’s rule that an honest service violation would occur every time an employee does not provide honest services to his employer, like by trying to watch football from the office. “Perhaps there are 150 million workers in the United States. I think possibly 140 of them would flunk your test,” he said to Dreeben, the government’s lawyer.
Justice Samuel Alito noted that lawmakers probably vote often on things that impact them or their families, and asked whether the government should have a list to tell which interests should be disclosed and which don’t have to be disclosed, “because they are just too common.”
Scalia questioned the government’s interpretation of the law. “Why would it have been so difficult for Congress to say no bribes, no kickbacks, and the third thing?” And Breyer said he thought Dreeben selected those three categories “randomly.”
Scalia said, “It is absolutely unclear what the law means.”
While justices challenged the lawyers of the two men on arguably smaller points in their cases, Justice John Paul Stevens appeared to express some support for the provision.
“Your position is not that there be no duty to disclose,” he said to Ayer in apparent disbelief. “You are saying there is not a duty to disclose of sufficient moment to justify criminal penalties.” Ayer replied that this was his argument.
The lawsuits stem from two cases, one where Weyhrauch, who used to sit in the Alaska House or Representatives, solicited an oil field service company, VECO, for a job when planning to end his term. At the time, however, the legislature was considering a bill to increase taxes on the profits of oil companies, but supported it given that it did not charge 20 percent.
Weyhrauch never disclosed the potential conflict of interest, but ultimately voted in favor of a 22.5 percent tax.
The other case involved former media baron Black, who was winding down his company and selling the many newspapers that it had accumulated. Another newspaper company, APC, which was owned by Black’s company Hollinger, paid Black and others $5.5 million to agree not to compete with APC after leaving their jobs with Hollinger.
The money was not disclosed in reports to the Securities and Exchange Commission.
Jack Abramoff was convicted of bribing public officials as a lobbyist and Blagojevich was impeached and arrested on charges of soliciting bribes to fill President Obama’s Senate seat.