Lobbying and the Honest Services Statute

           The trial of Kevin Ring, a former lobbying associate of Jack Abramoff, ended in a mistrial this week when the jury was unable to reach a verdict.  Ring was charged with conspiring with Abramoff and others to deprive the United States and its citizens of the “honest services” of certain executive and legislative officials by providing those officials with various things of value, such as meals and tickets to sporting events.   

A former prosecutor, Peter Zeidenberg, tells TPM Muckraker that the prosecution was “extremely problematic” due to the fact that the gifts provided by Ring did not in themselves violate any law.  Zeidenberg has argued previously that the expansive use of the honest services statute is chilling the lobbying profession’s exercise of its First Amendment rights by, for example, causing many lobbyists to reduce or cease giving campaign contributions out of fear that such contributions could be used by an aggressive prosecutor as the basis for an honest services charge. 

The vagueness of the honest services statute, and its potential application to any conduct that a prosecutor might deem unethical, has long been a source of concern.  Justice Scalia, in dissenting from the denial of certiorari in an honest services case earlier this year, noted that “[i]t is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”  The Supreme Court has now agreed to hear three separate honest services cases, which may result in a substantial narrowing, or a complete invalidation, of the statute.  The outcome of those cases may determine whether Ring is retried.