Several former Capitol Hill aides caught in the influence-peddling scandal centered on ex-lobbyist Jack Abramoff could see their guilty pleas undone after the Supreme Court narrowed the scope of a public corruption statute Thursday.
The Supreme Court ruled that a federal statute known as the “honest services” law only applies in cases involving bribery or kickback schemes.
Federal prosecutors had previously employed the statute — which makes it a crime to “deprive another of the intangible right of honest services” — in a broad range of public corruption and corporate fraud cases, in part because it provided more legal flexibility than the rigid requirements of charges such as bribery.
In particular, prosecutors obtained numerous plea deals in connection with the Abramoff investigation in which individuals agreed to charges of conspiracy to commit honest services fraud.
But the Supreme Court’s ruling may gut some of those agreements, because the individuals have pleaded guilty to a conspiracy to carry out a crime that no longer exists, several legal experts said.
“They may get a ‘get out of jail free’ card if they wanted to,” said Loyola Law School of Los Angeles professor Laurie Levenson.
Attorneys for two former Congressional aides who had accepted plea deals said Thursday they would review the Supreme Court’s decision.
“I don’t think the judge will accept the plea to something [the court] determined is no longer a crime,” said Ed MacMahon, attorney for Mark Zachares, a former House Transportation and Infrastructure Committee aide who pleaded guilty in 2007 to one count of conspiracy to commit honest services fraud.
MacMahon said, however, that he and his client had not made a decision Thursday and would continue to consider all available options.
“There’s no evidence Mr. Zachares ever took a kickback or a bribe,” MacMahon said.
Drew Hutcheson, an attorney for Ann Copland, a former aide to Sen. Thad Cochran (R-Miss.) who pleaded guilty in 2009 to one count of conspiracy to commit honest services fraud, said he would also consider the new ruling.
“I’ve been looking forward to seeing what the Supreme Court had to say on the subject of the vagueness of the honest services fraud statute, and I’ll look forward to reading their opinion,” Hutcheson said Thursday.
Among those who have pleaded guilty to a variety of corruption charges, including honest services fraud, but have yet to be sentenced owing to their ongoing cooperation with Justice Department prosecutors are: John Albaugh, chief of staff to then-Rep. Ernest Istook (R-Okla.); Todd Boulanger, a “Team Abramoff” lobbyist and former aide to then-Sen. Bob Smith (R-N.H.); James Hirni, a Team Abramoff lobbyist and former aide to then-Sen. Tim Hutchinson (R-Ark.); Michael Scanlon, an aide to then-Rep. Tom DeLay (R-Texas) who founded a public relations firm; and Tony Rudy, a Team Abramoff lobbyist and former DeLay aide.
Defense attorney Stan Brand, a former House general counsel, said the ruling would also likely lead to appeals from individuals already convicted under the former law.
“I think there are a lot of people in federal institutions who are going to be filing motions,” Brand said, but he added that the Supreme Court decision will not lead to a reversal in every instance: “Each case is going to be different because it depends what they pled to, what they are convicted of.”
In the meantime, legal experts said the court’s decision would likely prompt federal prosecutors to largely abandon the honest services statute, although several said prosecutors had already been avoiding such charges pending the outcome of the Supreme Court challenges.
Instead, prosecutors are expected to rely on existing statutes such as false statement prohibitions and disclosure regulations.
“The sky is not falling on federal prosecutors,” said Levenson, a former U.S. attorney. “There’s plenty of weapons still left in their arsenal. ... In many of those cases there are other statutes that will apply. I think it became too easy for prosecutors to rely on this one.”
Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said Thursday that the ethics watchdog group is pushing Congress to fill the gap with a new provision.
“This is definitely a big problem. This was the single crime most charged against public officials, and now you can’t use it.” Sloan said. “This is a great boon for corrupt public officials everywhere.”
The group is advocating the expansion of a federal law that currently applies only to executive branch employees, prohibiting those individuals from using their official positions to affect their personal financial interests.
“We’re already meeting with people on the Hill,” Sloan said. “They recognize it as a problem.”
The Supreme Court issued its ruling in a case involving former Enron CEO Jeffrey Skilling, who argued that the honest services law was too vague.
The court also heard appeals on the law in separate cases involving ex-Hollinger International Chairman Conrad Black and Alaska state Rep. Bruce Weyhrauch (R).
Rep. Bill Cassidy has his blood drawn by Alesha Barbour during a free hepatitis screening in the Rayburn House Office Building hosted by the Congressional Viral Hepatitis Caucus to recognize "National Viral Hepatitis Testing Day."
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