SCOTUS Receives Briefs in Skilling Challenging "Honest Services" Fraud

Last week, we reported that the United States Supreme Court heard oral arguments in two cases concerning the “honest services fraud.”  At the end of last week, the Court received briefs on the third case.  There, lawyers for a former Enron Corp. executive Jeffrey K. Skilling took the position that it is not the Justices’ job to rewrite a federal criminal law to give it meaning that Congress failed to provide.  They thus contended that the so-called “honest services fraud” must be struck down as too vague to survive the Constitution’s limits.  The merits brief for Jeffrey K. Skilling thus squarely gives the Court a full constitutional argument to consider.  Skilling v. U.S., 08-1394
 
While the argument was also presented in the other two cases, both of these cases have procedural problems.  The issues were not squarely presented in the lower court.  It appears that Skilling does not have that problem. 
 
Skilling’s attorney are apparently trying to land a killing blow to the statute.  They argue that it is not the Court’s job to fix Congress’s mistake and that the Court should not engraft a savings construction.  While Skillings lawyers are clearly pushing for invalidation of the law, they do make a reluctant fall back argument by offering one way to save the law.