From the Law Blog:
LB: What does the court’s ruling mean for honest-services law?
Plotkin: This cuts back honest services fraud significantly. The majority opinion said the statute should be limited to cases involving alleged bribes and kickbacks. Skilling was not accused of that; he was said to have violated the honest-services law by depriving people of his responsibility as as officer of the company.
LB: How often do prosecutors bring honest-services cases?
Plotkin: It is one of the most common charges brought by the Justice Department in cases involving public officials or financial-type fraud. It’s been popular because it’s so malleable. When it looks like someone has done something unethical, prosecutors can use honest-services fraud to justify introducing evidence of whatever the alleged unethical behavior was, such as failing to disclose a conflict of interest. The government would have to work harder to get in that type of evidence under other theories.
LB: What sort of ammunition does this opinion provide defense lawyers?
Plotkin: In some cases, it could have a big impact. Former [Illinois] Governor Rod Blagojevich is in trial now and one of the charges against him is honest services fraud. This will have an impact on his trial. Former Alabama governor [Don] Siegelman is appealing an honest services fraud conviction, so this could have a significant impact in that case. If you can argue in ongoing cases that there is no evidence of a fraud or kickback, the opinion could be a basis to dismiss that aspect of the case.