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Rod Blagojevich, Jeffrey Skilling and honest sevices

This article first appeared in the St. Louis Beacon, Oct. 27, 2009 - What do imprisoned business executives Jeffrey Skilling and Conrad Black have in common with disgraced former Gov. Rod Blagojevich? The convictions of the former Enron chief and media mogul rest in part on the same federal law that forms an important part of the indictment against Blagojevich - depriving people of the "intangible right to honest services."

It's an important connection because the U.S. Supreme Court has agreed to hear the appeals of Skilling, Black and an Alaskan legislator - all convicted under the law. If the court decides that the law is too vaguely worded, it could make the job of prosecutors in the Blagojevich case and other public corruption cases more difficult, though not impossible.

The honest services law largely developed as a result of federal prosecutions in Illinois under former U.S. Attorney Jim Thompson. One of the prosecutors who handled the prosecutions was James F. Holderman, the judge who approved the electronic surveillance of Blagojevich.

Stephen B. Higgins - a partner at Thompson Coburn who prosecuted white-collar cases in St. Louis as an assistant U.S. attorney in the 1970s and U.S. attorney from 1990-93 - described the evolution of the honest services law in an interview at the time Blagojevich was first charged.

He said Thompson and Holderman tried to use the federal mail and wire fraud statutes not only against schemes that defrauded people of property, but also against public officials who defrauded the people of their "intangible right" to honest government.

The U.S. Supreme Court eventually rejected this approach, but Congress passed a clarification, Section 1346, which embeds the prosecutors' approach into law. Section 1346 is one of the laws that U.S. Attorney Patrick Fitzgerald has accused Blagojevich of violating and forms an important part the indictment against him.

That is the statute that the Supreme Court now is reviewing. Justice Antonin Scalia has said in a previous case from Illinois that the law invites abuse by "headline-grabbing" prosecutors.

Applying the law to corporate officials may be more of a stretch than applying it to elected officials, legal experts say, because it's not clear that executives of private corporations owe the public their honest services.

Skilling, Black and Blagojevich shouldn't make any big plans for the future, however, because the criminal cases against them don't rely entirely on Section 1346.

William H. Freivogel is a professor in the Southern Illinois University's School of Journalism, a contributor to St. Louis Public Radio and publisher of the Gateway Journalism Review.