Author: Timothy Sandefur
Forbes’ “Business in The Beltway” blog has a report on the Jeffrey Skilling case, argued in the Supreme Court this afternoon:
Congress passed Section 1346 in 1988 after the Supreme Court rejected a common interpretation of the wire fraud statute that made it a crime to deprive somebody of “intangible rights” such as the rights of citizens to have their politicians work exclusively for them, and not in side deals with outside companies. Determined to keep the law the way it had been interpreted, Congress simply added “honest services” and hoped the court would let the matter drop.
“In normal cases that would be perfectly fine,” said Timothy Sandefur, a lawyer with the Pacific Legal Foundation who’s filed briefs supporting Skilling. [Actually, just the one brief.] Congress reversed the so-called Ledbetter decision last year, limiting pay-discrimination suits, and it has reversed prior rulings on subjects like religious buildings. The problem here, Sandefur said, is that Congress inserted an “incredibly vague” phrase the Supreme Court had already rejected.
“They wanted to demonstrate they did something,” he said. “They didn’t exercise any critical judgment.”