Lanny A. Breuer, assistant attorney general with the criminal division of the U.S. Department of Justice substantiated Feingold’s concerns. “I assure you that the impact of Skilling is real, and that there is conduct that would have been prosecuted under the honest services fraud statute before Skilling that can no longer be prosecuted under the federal criminal law,” said Breuer.
In drafting new legislation to address the loophole, Breuer urged that Congress include language requiring that those prosecuted under the law both intend to defraud and knowingly cover up that intent. This, said Breuer, will ensure that no person can be convicted for mistakenly or unwittingly breaking the law.
Michael L. Seigel, University of Florida Research Foundation Professor of Law, agreed with Breuer, but also noted that Congress should make the new law specific in establishing what conduct would be illegal. Such precise language is necessary, said Seigel, to prevent erroneous interpretation.
However, Samuel W. Buell of Duke University School of Law, told the committee that vagueness is not an issue so long as the legislation clearly requires intent. “There is nothing novel, or unworkable, or imprudent about the idea of Congress passing general prohibitions on fraud and the courts working out how to apply those general concepts to new forms of harmful deception as they arise,” said Buell.
The real issue, noted Buell, is proving that the person being prosecuted knew that his or her actions were wrong. “The Supreme Court itself has often observed that actors who are aware of the wrongfulness of their own conduct are not in a position to complain that they have been the victims of surprising application of allegedly vague laws,” he said.
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