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Friend of the Court

Law professor brings clarity to Supreme Court decision on anti-corruption law

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July 7, 2010 | by Hilary Hurd Anyaso

The U.S. Supreme Court recently handed down a ruling on a major anti-corruption case involving Jeffrey Skilling and his high-profile, Enron-related felony conviction.

While the opinion's ultimate effect on Skilling isn't clear, the ruling pleased Albert Alschuler, a leading criminal law professor at Northwestern University School of Law.

The court cited Alschuler's amicus curiae brief about the federal law in question, the "honest services" statute. This law makes it a crime "to deprive another of the intangible right of honest services." It has played a key role in a number of convictions of white-collar criminals, including those of former newspaper magnate Conrad Black and former Illinois governor George Ryan. 

Though the court upheld the anti-corruption statute in Skilling v. United States, three justices said that the law was too vague to be constitutional.

Alschuler persuaded the other six justices that it wasn't-at least not when the law was read narrowly to cover only things that Congress plainly meant to cover. His position on clarifying the law was discussed during oral argument and was central to Justice Ginsburg's majority opinion. The law against "honest services" fraud must be narrowed to the most "seriously culpable conduct" of taking bribes or kickbacks, Ginsburg said, quoting a passage from the "amicus curiae brief for Albert W. Alschuler."

It all started last fall when Alschuler filed a "friend of the court brief" in the companion case Weyhrauch v. United States. Typically, amicus briefs are written on behalf of organizations interested in the outcome of the litigation, but this one was filed simply as a brief of Albert W. Alschuler. 

In an earlier case, Alschuler said, Supreme Court Justice Antonin Scalia had noted that the "honest services" law could cover an employee who falsely phoned in sick across a state line.

"It's language that can mean almost anything," Alschuler agreed. 

Though he widely is being credited by journalists who cover the Supreme Court with saving the anti-corruption law, Alschuler recently was reminded that his influence has limited reach.

"I said at the breakfast table, ‘It's nice that the Supreme Court of the United States listens to me even if my wife doesn't.'  My wife replied, 'What do you mean? I entirely agree with your position on the "honest services" statute.'"

Below Alschuler discusses the case with Hilary Hurd Anyaso, law and social sciences editor at Northwestern.

Why did you file an amicus brief in this case?

I'd represented an "honest services" defendant in the 7th Circuit Court of Appeals, and I'd had seen how this law was stretched and misused. In a sense, although the case was long over, I wanted to appeal to a higher authority.

I also had some students who were interested in the subject, and we‘d talked about doing a law review article together. Then the Supreme Court took two honest services cases, and we realized there wasn't time. One student suggested writing an amicus brief. At first I didn't take the idea seriously, but he pestered me until I sat down and did it.

What position did you advocate in your brief?

I argued that the "honest services" statute should be limited to cases of bribes and kickbacks and that, once the statute was limited in that way, it was constitutional. That position was one that none of the parties in the three cases before the Court (Skilling v. United States, Black v. United States, Weyhrauch v. United States) had supported, and as Justice Scalia noted in dissent, it was also a position that no Court had endorsed in the hundreds of earlier decisions interpreting and applying the statute. Most lower courts had given the statute much more expansive readings, making it a 20-year federal felony, for example, for a state official to profit from any violation of any state law, even a misdemeanor or a non-criminal regulation. 

What were your expectations when you filed the brief? Did you think there was a chance it would be referenced?

I imagined that once the case was argued and a justice was assigned to write the opinion, that justice's law clerk probably would look at the brief to see if it offered anything useful. At the oral argument in December, I was surprised to hear the brief discussed from the bench. The justices had read it and were taking it seriously.

Had you ever filed an amicus brief before?

Thirty-five years ago, when I was teaching at the University of Texas, I filed an amicus brief in a school integration case in the Fifth Circuit.  I argued that the court needed to treat Mexican-Americans as a distinct group (rather than as "white") when formulating the school-integration plan for Austin, Texas.  Judge John Minor Wisdom cited the brief in his dissenting opinion, but I didn't persuade the Court.

How unusual is it for individuals to file amicus briefs?

People with an interest in the case sometimes file as individuals, but mine was truly a friend of the court brief. I thought I had something to say that the Court wasn't likely to hear from the parties, and briefs of that sort are rare.

Are amicus briefs a new and coming form of legal scholarship?

Now that I've done it, I wonder why it doesn't happen more. We academics often write articles about questions the Supreme Court will decide in the hope that what we say will be of use to the Court. But there's a way of saying it to the Court directly.