I have previously noted my view that our culture, including unfortunately our business culture, is shot through with deceit and slick practice. I was therefore half-rooting for the government to win its "honest services" case in the Supreme Court against former Enron executive Jeffrey Skilling.
The honest services statute is broadly written, and therefore liable to abuse at the hands of a politically-driven executive branch. In the present climate, that is no small concern. On the other hand, the long-term dumbing down of standards of honesty strikes me as ominous. Law is a blunt and inapt instrument for dealing with cultural decline, but has a certain utility nonetheless -- as a sign, for example, that society is still capable of saying "no" and meaning it.
In Skilling's case, the Supreme Court took a bite out of the honest services statute by confining it to standard bribery and fraud. It remanded the case to the Fifth Circuit to determine whether the prosecution's reliance in part on an impermissibly broad "honest services" theory was harmless error, in light of the mass of other evidence that supported Skilling's convictions under the honest services statute as narrowed.
Yesterday, a unanimous panel of the Fifth Circuit found the error harmless, affirmed all the convictions, and remanded the case to the district court for resentencing. Skilling might get a small sentence reduction, but my bet is he won't. Under the Sentencing Guidelines' still-viable relevant conduct rule, and the district court's much expanded discretion in the wake of Booker, Gall and Kimbrough, Skilling is likely to face the same music he faced the first time. He is, after all, no less a breathtaking crook now than he was then.