In appealing his conviction under the honest services theory, Skilling argued that he cannot be convicted under the statute because it does not clearly state that his actions were illegal. The U.S. Supreme Court agreed with Skilling, ruling that because most cases under the honest services doctrine involved bribes and kickbacks, the Court determined that the law applies only to bribes and kickbacks (.pdf of decision below). Thus Skilling’s conviction on that count must be thrown out, ruled the Court. This did not invalidate the government’s entire case against Skilling, however. The Court ruled that the conviction, including counts of fraud and conspiracy can be reexamined by a lower court.
Justice Scalia issued a dissenting opinion on this issue, arguing that the statute should be thrown out because it is too vague rather than be rewritten to make it less so. In his written dissent, Scalia wrote that “…it is obvious that the mere prohibition of bribery and kickbacks was not the intent of the statute. To say that bribery and kickbacks represented ‘the core’ of the doctrine, or that most cases applying the doctrine involved those offenses, is not to say that they are the doctrine. All it proves is that the multifarious versions of the doctrine overlap with regard to those offenses. But the doctrine itself is so much more.”
(Skilling v. United States, U. S. Supreme Court, No. 08-1394, 2010)
♦ Photo of U.S. Supreme Court by laura padgett/Flickr