WASHINGTON — One of the attorneys urging the U.S. Supreme Court to strike down an anti-corruption statute told the justices on Tuesday that the law used in the case against a former Alaska lawmaker is "vague, amorphous," and "open-ended."
"Essentially," attorney Miguel Estrada said, it is "not very helpful."
The justices -- who heard two related honest services fraud cases Tuesday and will hear a third, similar case next year -- appeared to agree. Prosecutors are "all over the place" in their application of the law in corruption cases, said Justice Antonin Scalia.
"And if the Justice Department can't figure out what is embraced by this statute," he said, "I don't know how you can expect the average citizen to figure it out."
The Supreme Court is taking a look at three cases in which prosecutors made use of the 28-word "honest services fraud" statute adopted by Congress in 1988.
The first case, an appeal by the newspaper magnate Conrad Black, focused on the law's application in cases against executives who defraud shareholders. The other, the federal case against former Alaska Rep. Bruce Weyhrauch, focused on how the law is used as a weapon against corrupt political figures. The court will take a look next year at how the law was applied in the case of Jeffrey Skilling, former CEO of the now-bankrupt energy giant Enron.
Prosecutors often use the honest services fraud law to go after public officials and executives when they can't prove they accepted bribes -- but where they have enough evidence to show that those officials deprived their constituents or stockholders of their "honest services" by accepting freebies or engaging in self-dealing that lined their own pockets while on someone else's payroll.
In Weyhrauch's case, the court is considering whether prosecutors need to prove the former Juneau Republican violated a state disclosure law to gain a conviction on federal mail-fraud statutes. Weyhrauch's case hasn't yet gone to trial.
The attorney for the government, Deputy Solicitor General Michael Dreeben, told the justices that in Weyhrauch's case, the government aims to prove that the residents of Alaska were entitled to the former lawmaker's honest services. Officeholders are well aware they live in a "dual system in which citizens are governed by and accountable both by their states and by the federal government," Dreeben said.
He acknowledged to the justices that in some cases, the "core understanding of what honest services is may have been strayed from," but added that it "doesn't mean that the statute is vague."
But Justice Samuel Alito posed the question: Don't lawmakers have to vote on "all sorts of things that have an impact on their own financial interests or the financial interests of their family or associates," such as tax codes?
"Don't you need some kind of a disclosure code to separate the things that have to be disclosed from the things that don't have to be disclosed, because they are just too common?" Alito asked.
Federal prosecutors allege Weyhrauch solicited legal work from the oil-field service company Veco Corp. at a time when Veco was pushing hard to win support for lower oil taxes in the state Legislature. Federal prosecutors said Weyhrauch should have disclosed his job search as a conflict of interest.
Weyhrauch's attorneys argued that state law didn't specifically require such disclosure and, as a result, the federal fraud statute couldn't be used to charge him with defrauding Alaskans of his "honest services."
A District Court judge in Alaska agreed with Weyhrauch, but the government appealed and won in the 9th Circuit U.S. Court of Appeals. The appeals court sided with prosecutors, saying legislators had a duty to disclose such conflicts. The court reasoned that even if a state has weak ethics laws, it was no reason for its citizens to be deprived of the honest services of their public officials.
In court Tuesday, Weyhrauch's attorney, Don Ayer of Washington, D.C., argued to the justices that there was absolutely no duty for his client to disclose his job search under state law.
"He is a part-time legislator in a state that has a citizen legislature that has made a decision specifically not to have its disclosure rules be unduly burdensome," Ayer said. "That's their own specific language. They don't want them to be unduly burdensome. They have required certain disclosures. They have not required others."
Both of Weyhrauch's Alaska attorneys said they were pleased with the direction the case appeared to be headed on Tuesday, based on the questions asked by the justices. If the Supreme Court decides in their favor, his lawyers said, they expect the rest of the case against Weyhrauch to disintegrate quickly.
"There is no evidence," Ray Brown, one of Weyhrauch's lawyers, said in front of the Supreme Court Tuesday once the arguments had concluded.
"The evidence that we confronted the government with, over a couple of weeks before trial, was a videotape that they'd taken, where they allege that the deal was made," said Doug Pope, another of Weyhrauch's attorneys. "And once they produced it and we looked at it, there was no deal on the videotape. So tell me where they're going to get the evidence?"
Several cases in a wide-ranging federal corruption probe into Alaska politics began falling apart this year during the trial of former Sen. Ted Stevens, R-Alaska. Stevens, who was convicted in late 2008 of filing false financial disclosure forms, saw his indictment dismissed after defense attorneys questioned the way that prosecutors and the FBI handled witnesses and evidence in Stevens' case and others.
In two related cases, former Alaska state lawmakers Pete Kott and Vic Kohring were freed from prison in June when the government acknowledged they may not have gotten fair trials because favorable evidence was withheld from them. But prosecutors now say the favorable evidence wasn't material to their cases and have argued that their convictions should stand. The matter is before a federal district judge in Anchorage.
In Stevens' case, the Justice Department acknowledged that it had failed to share with the former senator's lawyers notes from an interview with the prosecution's key witness. Those notes contradicted the witness's trial testimony and could have been favorable to Stevens at trial.
Pope said his true thoughts on Weyhrauch's case were unprintable, "because I would use some bad language."
"This case should never have been brought because they didn't have the evidence," he said. "It was brought because some very ambitious prosecutors -- who revealed their true side in the Stevens case -- thought that they had a theory that they could prevail on in trial. That's the reason we're here, right in front of the U.S. Supreme Court."
Based on questions the justices raised about the Skilling case, both Brown and Pope said they expect the court to rule on the Weyhrauch and Black cases after the Supreme Court hears the former Enron executive's case next year.