In recent years, Congress has criminalized countless issues, giving the feds authority to prosecute people for all sorts of offenses that used to be left in the hands of state and local officials. The largest aspect of this new trend of making everything a federal crime might be the growth of “honest services fraud.”
For a number of years now, it has been a federal crime to deny people “the intangible right of honest services.” If you owe someone an “honest service” and then lie, cheat or steal, the federal government can come after you. This is used to go after state and local officials who misuse their office, and now is even used against private citizens for corporate scandals.
On Tues., Dec. 8, the Supreme Court will hear arguments in two cases involving this drastically-broad federal law: Black v. United States and Weyhrauch v. United States. One of these cases, Black, will be argued by one of the greatest Supreme Court lawyers in the country, Miguel Estrada, whom President Bush tried to put on the D.C. Circuit federal appeals court, but whose nomination was filibustered by Senate Democrats because it was expected that Estrada would become the first Hispanic Supreme Court justice (instead of Sonia Sotomayor).
The power to imprison is the power to destroy. By making so many things federal crimes, it gives the feds power into whole new areas of our lives. These cases explore that issue. Commentary and analysis will be available after the argument.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.