The Federal Common Law Crime of Corruption

This contribution to the North Carolina Law Review’s 2010 symposium, Adaptation and Resiliency in Legal Systems, considers the compatibility between the common law nature of honest services fraud and the dynamic quality of public integrity offenses. Corruption enforcement became a focal point of recent debates about over- criminalization because it typifies expansive legislative mandates for prosecutors and implicit delegations to courts. Federal prosecutions of political corruption have relied primarily on an open-textured provision: 18 U.S.C. § 1346, the honest services extension of the mail fraud statute. Section 1346 raises notice concerns because it contains few self-limiting terms, but it has also acquired some principled contours through common law rulemaking. Those boundaries are consistent with an animating principle of public corruption prosecutions: ensuring detached decisionmaking in the public interest. The distortive potential of significant personal financial gain may best distinguish actionable corruption from ordinary political dealings. Although the Supreme Court granted certiorari in the Skilling, Black, and Weyhrauch trio of cases in part to consider the link between harm and liability for honest services fraud, the Court did not address the issue, instead simply limiting the statute to bribes and kickbacks. Recent public corruption prosecutions illustrate some shortcomings of that decision and indicate that the courts could better confine honest services fraud by building on the harm constraint that had begun to emerge through the common law. The concluding sections here explore both the way in which a purposive interpretation might limit honest services prosecutions and the extent to which unanswered questions in the Skilling decision still allow for development of the harm concept