No Reason for Congress to Tinker With Federal Criminal Law


Sometimes even the United States Congress does not know when to leave well enough alone.

Despite the growing sentiment that the federal government has overextended the reach of federal criminal law, both the House of Representatives and the Senate are considering legislation that would expand the ability of federal prosecutors to bring public corruption cases in areas now subject to prosecution only under state law. This legislation is designed to address a series of decisions by the United States Supreme Court that have limited the reach of federal criminal law in the public corruption sphere.

In 1987, in McNally v. United States, the U.S. Supreme Court limited the application of federal mail and wire fraud statutes to cases involving crimes against tangible property rights. The following year, Congress enacted section 1346 of Title 18 to specifically provide that the “scheme or artifice to defraud” required to show a violation of the mail and wire fraud statutes included “a scheme or artifice to deprive another of the intangible right of honest services.”

But in June 2010, in United States v. Skilling, United States v. Black, and United States v. Weyhrauch, the U.S. Supreme Court narrowed the scope of “honest services fraud” prosecutions to cases involving bribes and kickbacks. Although the Court was deeply divided, the majority specifically rejected the position of the United States Department of Justice that “honest services fraud” should include cases involving “self-dealing” – that is, taking some action that gives one personal gain, without disclosing that fact – or conflicts of interest.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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