Supremes to DOJ: Honest Services Fraud? Again?!

Bob McDonnell was the governor who enraged me by going back on his word not to raise taxes, while using the expected revenue as justification for a road that wasn’t needed and couldn’t actually be built. I mention that (again) so it is clear that I am neither a friend nor supporter of his.

That said, he was going up against something far more hideous in the Supreme Court this morning – the dog’s breakfast of a law known as “honest services fraud.” It’s very, very hard to come out looking worse with that type of adversary – thankfully for the ex-Governor, his attorney stayed well clear of that bar.

How well did Noel Francisco (McDonnell’s attorney) do? This was the only sour note the WaPo could find:

The only bad moment of the hour-long argument for Francisco, however, came when he referred to Ginsburg as “Justice O’Connor,” something that used to happen more regularly when Ginsburg and Justice Sandra Day O’Connor were the court’s only women. O’Connor retired in 2006.

“That hasn’t happened in quite some time,” Ginsburg said, laughing.

I will acknowledge I am not an attorney, and getting a Justice’s name wrong can never be “good,” but when you spend an hour arguing the law and the only mark against you has nothing to do with said law, it’s a good day.

This doesn’t really surprise me, but as I’ve said on this space before, I think the “honest services” statute deserves to be junked. Whether or not that will happen is an open guess. Only two of the current justices were willing to invalidate it in Skinner v. United States, but there is hope this case might convince them that the Department of Justice simply won’t listen to the Court’s attempts to narrow this law.

At the very least, expect it to be narrowed again, meaning Bob McDonnell will is all but certain to have fewer convictions, if any, on his record in July than he does now.