A Question of When Dishonesty Becomes Criminal

In February, Justice Antonin Scalia wrote that federal prosecutors had developed an unseemly crush on a particularly vague law, one that “has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”

Justice Scalia was writing to protest the Supreme Court’s decision not to hear an appeal from three city officials in Chicago who had been convicted of violating the law, which makes it a crime “to deprive another of the intangible right of honest services.”...

...The “honest services” law, Justice Scalia explained, says that “officeholders and employees owe a duty to act only in the best interests of their constituents and employers.” Carried to its logical extreme, he said, “it would seemingly cover a salaried employee’s phoning in sick to go to a ballgame.”...

...The honest services law is but one example of what Harvey A. Silverglate, a civil liberties lawyer in Boston, calls “an over-criminalization problem.” His new book, “Three Felonies a Day: How the Feds Target the Innocent,” argues that the average American professional unwittingly commits several serious crimes each day.

“Even the most intelligent and informed citizen (including lawyers and judges, for that matter),” Mr. Silverglate writes, “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.”

The Justice Department, of course, sees the matter entirely differently. In its Supreme Court brief in Mr. Black’s case, the government said the honest services law has an important role to play in attacking frauds that do not involve the loss of money or property but something intangible like candor or loyalty. In Mr. Weyhrauch’s case, the government said that requiring proof of a violation of a state law would result in a patchwork of legal standards under a single federal law.