Re-Criminalizing "Honest Services"

Apparently, it is not enough that businessmen are constrained by 10,000 commandments, so that every businessman in American can be nailed for some crime or other whenever a prosecutor decides to go after him. Now, the ferociously anti-capitalist Senator Patrick Leahy (Democrat of Vermont) and the blithely law-defying Obama Justice Department are joining forces to re-broaden the white-collar offense called “honest-services fraud,” which the Supreme Court narrowed last June to something that was borderline intelligible (bribes and kickbacks).

According to this report in the Wall Street Journal, by Tom McGinty and Ashby Jones, Leahy said last Friday that he was working with his colleagues "to determine how best to clarify and restore this statute." On Tuesday, September 28, Leahy’s Senate Judiciary Committee will be hearing about the Court ruling's impact from the head of Justice Department's criminal division. (That would be Lanny Breuer, who got his friend Sandy Berger off with a wrist slap after Berger stole documents from the National Archives.)

In a wonderfully apt summary, the Journal reporters write: “Justice Department officials and congressional staff are discussing how to close what they believe is a legal hole left by the high court, people familiar with the matter say.” That “legal loophole” is sometimes called “economic liberty.” The reporters’ remark is reminiscent of the New York Times editorial last August last commenting on the decision not to prosecute former House Majority Leader Tom Delay: “Many of Mr. DeLay’s actions remain legal only because lawmakers have chosen not to criminalize them.”

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