Ken Klukowski
What if there was a federal law stating that anytime you owe anyone a duty to be honest and you violate that duty, you’re committing a federal felony? Guess what—there already is. And now the Supreme Court is deciding whether to strike it down.

There’s a federal law on the books called “honest services fraud,” making it a crime to deprive anyone of the “intangible right of honest services.” In other words, if you’re in a relationship where you have a duty to provide a service to someone (government, employer, etc.), and you engage in any sort of deceit resulting in them not getting your honest, good-faith efforts, then you’ve committed a felony that could land you in federal prison for twenty years.

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The idea behind the law didn’t start off too badly. Because the federal government provides the U.S. Postal Service, it’s a federal crime to use the U.S. mail to engage in fraud. From that, Congress wanted to go after any fraud where the criminal used the mail service.

But the problem with government is that it tends to expand, including expanding its ability to throw people in jail.

Fortunately, the Constitution provides a check on this power. Often these days, “due process” is used as a catchall to advance any number of legal theories, most of them liberal. But one correct doctrine from the Due Process Clause of the Fifth Amendment and Fourteenth Amendment is that a statute can be “void for vagueness.”

What that means is that one of the principles of our criminal-law system is the concept of “notice.” Although ignorance of the law is no excuse, the law must be written with sufficient clarity that if a particular action is a crime, a citizen who does due diligence into that law should be put on notice that the action he’s thinking of is criminal.

Put otherwise, if a law is so vague that a person can’t tell if a particular action falls within what that law forbids, then the law is so vague that it would violate due process to punish him for breaking it. You can’t justly punish someone if they couldn’t have known that what they did is forbidden.

That was what the Court heard arguments about in two cases on Dec. 8. One was Black v. U.S., where three corporate employees engaged in a fraudulent scheme. The other was Weyhrauch v. U.S., where a state representative in the Alaska legislature engaged in some shady business.

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.