If All Politicians Are Corrupt, But All Defendants Are Presumed Innocent, Then What? A Case for Change in Honest Services Fraud Prosecutions‪.‬

PROLOGUE On December 8, 2009, the Supreme Court heard arguments in United States v. Black (2) and United States v. Weyhrauch. (3) The Court has also granted certiorari in United States v. Skilling, (4) which it will hear this Term. Each case requires the Court to interpret 18 U.S.C. [section] 1346, an arrow in the Department of Justice's quiver for prosecuting corrupt politicians and businessmen. (5) Considering the issues presented, it seems that the Court intends to throw light on a subject it admonished Congress to "speak more clearly" about nearly twenty-two years ago in McNally v. United States, (6) in which the Court refused to extend federal mail fraud (7) to schemes to deprive the public of its right to honest and fair government. (8) Congress subsequently amended the statute in 1988 to include frauds that "deprive another of the intangible fight of honest services," (9) thereby reinstating any "honest services" jurisprudence preceding McNally. (10) Ever since, the question of what constitutes "honest services" has festered in the courts of appeals, which have adopted a variety of principles to limit the statute's reach, albeit not uniformly. (11) The resulting circuit split and post-McNally caselaw evinces concerns regarding vagueness, federalism, and how best to preserve the force of [section] 1346. (12) And so, regardless of how the Court decides these issues, this much is certain: a unifying definition for the "outer boundaries" (13) of honest services fraud, in light of [section] 1346's enactment, is long overdue.