Bribery, Kickbacks, and Self-Dealing: An Overview of Honest Services Fraud and Issues for Congress

Source: Michael A. Foster, Congressional Research Service, CRS Report, R45479, January 30, 2019

As the trials of Sheldon Silver and Dean Skelos illustrate, corruption among high-profile public officials continues to be a concern in the United States. Likewise, recent examples abound of powerful executives in the private sector abusing positions of trust for personal gain. Faced with this reality, Congress has shown consistent interest in policing public-and private-sector corruption, enacting a number of criminal provisions aimed at holding corrupt officials accountable for their actions under federal law. However, one of federal prosecutors’ most potent existing tools for combating such corruption— 18 U.S.C. §1346, which defines the crimes of mail and wire fraud as including so-called “honest services” fraud—has been a source of contention between the courts and Congress for years ….. Should Congress seek to alter the scope of honest services fraud, it will likely need to be attuned to the concerns that federal courts interpreting 18 U.S.C. § 1346 have voiced over the years. Chief among these have been the concerns that—as written—the statute has the potential to sweep too broadly and regulate ethically dubious conduct of state and local officials in a way that conflicts with the Constitution. ….