Since its prosecution of former Gov. Otto Kerner in 1973, no United States Attorney office has been more reliant on the honest-services fraud statute than the one in Chicago.
“The hobby of the office has been public corruption cases for maybe 35 years,” says Scott Lassar, who preceded current U.S. Attorney Patrick Fitzgerald for the Northern District of Illinois. “And the office was the first office to use the mail fraud statute in public corruption cases and then use the honest services fraud theory of mail fraud statute.”
So it stood to good reason that federal prosecutors here were particularly nervous about the Supreme Court honest-services ruling handed down Thursday – and not simply because it has won several recent high-profile convictions on honest-services fraud counts. Some experts were expecting the high court to junk the statute entirely, a move that would have changed what has been a key force in Chicago corruption cases.
Ultimately, that did not happen. The Supreme Court merely limited the scope of the honest-services fraud statute to bribes and kickbacks, a constraint that will likely only lead to slight modifications in the U.S. Attorney’s approach going forward, law experts told the Chicago News Cooperative.
“A lot of political corruption you see as bribes, kickbacks, so that would stick right in the heart of the honest services statute,” said attorney Eric Sussman, who led the prosecution of former Hollinger CEO Conrad Black. “I think the area where you are really seeing the pull back in honest services is notion of undisclosed conflict-of-interest.”
He continued: “I don’t see the (U.S. Attorney) office here doing all that many cases like that in the public corruption arena. I think a lot of the cases you have seen have been bribes or kickbacks.”
While honest services has made a cameo in Rod Blagojevich’s political corruption trial, the broad consensus is that the high court’s ruling will have only negligible impact in his case.
“The government clearly anticipated this decision and did what they could to structure their case so it would not be entirely dependent on an honest-services theory,” says former Assistant U.S. attorney Joel Levine, who prosecuted ex-Gov. George Ryan’s corruption case.
If there are any changes for prosecutors, Sussman sees it as only a matter of how the Feds approach the indictments, backstopping their cases with additional bribery and extortion statutes – much like what was done in the Blagojevich case.
“All things being equal,” said Jeff Cramer, who also served as a prosecutor on the Black case, “it is not going to impede law enforcement going forward.”
“If I were back in my role as government prosecutor,” adds Sussman, “I would take a deep breath and consider myself very lucky.”