An unambiguous ruling

There’s a reasonable chance that former Enron executive Jeffrey Skilling could be leaving his current abode at a federal prison in Englewood before long, thanks to a U.S. Supreme Court decision Thursday.

We’re pleased with the court’s ruling — and not because we have any great concern for Skilling, Enron or their manipulation of energy markets and stock prices. We do have a fondness for laws that meet constitutional requirements, however. And a federal law under which Skilling and others have been prosecuted clearly didn’t meet that standard.

The 1988 law made it a crime to “deprive another of the intangible right of honest services.” If you have trouble understanding exactly what that means, join the club. It’s so ambiguous that it’s virtually impossible to determine when a crime is committed. And that makes it a violation of the Fifth Amendment, according to Justice Ruth Bader Ginsburg, who wrote the decision.

Just how bad is the “honest services” fraud law?  Bad enough that all nine justices — liberal, centrist and conservative — agreed it was unconstitutional as applied to Skilling, to former newspaper magnate Conrad Black and several others. The only dissent came over whether the law should be scrapped altogether or allowed to stand with regard to bribery and kickback schemes. Six justices said it could remain in those limited circumstances.

In too many cases, federal prosecutors have used the broader law as a sort of catch-all to convict white-collar suspects of something when they engaged in questionable or unappealing conduct, and not other laws seemed to apply. But even different federal appellate courts couldn’t agree on exactly what it means to deprive someone of “honest services.” The law was too vague to meet due process rights, Ginsburg wrote.

Jeffrey Skilling won’t be immediately freed due to the ruling. His case will be sent back to lower courts for review. He was convicted on a variety of other charges besides the “honest services,” law. But his attorneys are confident the ruling will help them to get the other convictions dismissed.

Even if they’re correct and Skilling does go free, last week’s court ruling is to be applauded. It struck down a law that was a big hammer for overly aggressive prosecutors because it was so vague none could be sure when they had violated it.


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