And all their fates are tied to the outcome of the U.S. Supreme Court’s decision to review that statute next week, and consider whether the law under which they are charged is too broad.
Prosecutors say the statute is a powerful arrow in their quiver, allowing them to level charges with hefty sentences against someone who clearly did something wrong, but who doesn’t meet the threshold of bribery or graft.
But critics, including Justice Antonin Scalia, thinks it’s too vague.
In a lone dissent to the court declining to hear an honest services case last year, Scalia wrote the law “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”
The defense team for Fox — a former state lawmaker, county commissioner and Children Services director — sought and received a delay in Fox’s trial last week, in part to let the Supreme Court’s decision play out.
The charges against Fox include four counts of mail fraud involving honest services. These are the most serious charges in the indictment, each carrying a sentence of up to 20 years.
Fox and co-defendant Robert C. Schuler are accused of improperly benefiting from a contract between Schuler’s company and the county when Fox was a county commissioner. Federal prosecutors allege that Schuler wired Fox $460,000 while his fiber-optics company NORMAP profited off a contract with the county. Both pleaded not guilty last month.
High Court’s decision on fine point of law could affect Michael Fox’s federal case
It’s only 28 words. A footnote, really. But it has the power to send to prison the heads of mega-corporations, state governors and possibly one of the most prominent politicians in Butler County.
And it will soon come under the review of the U.S. Supreme Court after long being criticized as too vague.
It’s a provision in federal law that makes it illegal “to deprive another of the intangible right of honest services.”
That’s what federal prosecutors say Michael Fox — former state lawmaker, county commissioner and children services director — did when he allegedly accepted money from business owners profiting off county contracts without properly reporting it.
This includes co-defendant Robert C. Schuler, a Columbus-area attorney and owner of the fiber optics firm NORMAP. Schuler allegedly wired then-commissioner Fox $460,000 while NORMAP profited off a contract with the county that Fox helped Schuler secure.
The Supreme Court is scheduled Tuesday, Dec. 8, to hear arguments in the cases of two other people accused of similar crimes: former newspaper magnate Conrad Black and former Alaska state legislator Bruce Weyhrauch. They will later hear the case of former Enron President Jeffrey Skilling.
Fox’s defense team was granted a delay until June of his trial in federal court, in part to allow the Supreme Court’s decision to play out.
“Court watchers are curious to find out whether the statute will be narrowed in some way or it may even be found unconstitutional as a whole,” said Aaron Herzig, a defense attorney for Fox with the Cincinnati-based firm Taft Stettinius and Hollister.
“We’re certainly interested in seeing what the outcome is as well, because it’s a linchpin of the government’s indictment against Mr. Fox,” Herzig said.
Justice Scalia: Law 'simply not fair’
“I think that prosecutors need an adequate and fair law to be able to prosecute public officials who violate the duties of their office, and an honest services type law is important to be able to do that,” said Kathleen Brinkman, who was an assistant U.S. attorney in Cincinnati for 24 years.
“The Supreme Court is going to decide whether this law adequately protects the rights of public officials who are charged with such a crime,” added Brinkman, now a defense attorney with the firm Porter, Wright, Morris and Arthur.
One of the major questions, she said, is whether the law as written notifies public officials that their actions are criminal before they’re charged with it.
Brinkman said the statute has withstood challenges in the lower courts for years, but the fact that the high court is taking on these three cases, “could be read by some that there could be a majority on the court that’s antagonistic to this statute, but you never know until they render their opinions.”
Justice Antonin Scalia has urged the high court to review the law, saying it lacks specificity as to what level of self-interested dealing rises to a felony with a 20-year prison sentence. A mayor’s attempt to use his office to get a restaurant table without a reservation? A public employee’s recommendation of an incompetent friend for a public contract?
“Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game,” Scalia wrote in a dissent to the court refusing to hear the issue last term. “It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”
But without the statute, prosecutors wonder if some self-dealing executives and officials would have been brought to justice.
Prominent defendants
Fox and Schuler pleaded not guilty to an 11-count indictment charging them with conspiring to improperly benefit from a $2.75-million fiber optics contract with the county.
The indictment alleges they profited from the deal and failed to report the income properly. It also accuses Fox of not properly reporting income he was receiving from other companies doing business with the county, and accuses Schuler of lying to a grand jury.
Black, the former chairman and chief executive officer of the Hollinger International media company — then owner of the Chicago Sun-Times — was convicted in 2007 of fraud after he and other executives received $5.5 million from the company, claiming they were management fees.
Weyhrauch is charged with not disclosing that he was trying to get a job with the same oil field service company that would benefit from a bill he was pushing in the Alaska Legislature.
Skilling was convicted in 2006 on charges including conspiracy, fraud, insider trading and lying to auditors leading up to the 2001 collapse of Enron.
“What makes this interesting and significant are three very high profile cases, and each one of the defenses is a little different situation, so it will allow the Supreme Court to do a broad review,” Brinkman said.
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