A Clarion Call From Scalia On Honest Services Fraud

Yesterday Justice Scalia dissented from the denial of certiorari in Sorich v. United States, a Seventh Circuit honest services fraud case. Scalia’s dissent is a cogent due process and federalism based attack on the unfairness, inconsistency, and appalling lack of clarity governing the case law on honest services mail and wire fraud. With the death of the Holder Memorandum, DOJ’s use and misuse of the honest services fraud statute as a prosecutorial tool is emerging as the the number one issue in federal criminal practice today. Justice Scalia is often a few years ahead of the country on issues related to substantive federal criminal law and sentencing. Let’s hope his dissent catches the attention of some adults at DOJ. Somebody should call Arlen Specter. Here is Justice Scalia’s opinion. Thanks and a hat tip to Tiffany Joslyn of NACDL for bringing this to the attention of the NACDL listserve.