NOTE: This post has been updated to clarify a point of Alaskan law.

Bel0w, Rakesh Kilaru of Stanford Law School recaps Weyhrauch v. United States, one of the two “honest services” cases heard by the Court on Tuesday. Rakesh’s preview of the case can be read here, and his recap joins Lyle’s earlier analysis of the argument, available here. Check the Weyhrauch v. United States (08-1196) SCOTUSwiki page for additional updates.

At oral argument on December 8, 2009 in Weyhrauch v. United States, the bulk of the Court's questioning focused on the broader issue of whether the "honest-services fraud" statute at issue "“ 18 U.S.C. § 1346 "“ is unconstitutionally vague.  Indeed, the primary issue on the Justices' minds seemed to be whether it was at all possible to construe the statute in a manner that would make its scope clear to the "average citizen."  Nevertheless, as Lyle Denniston observed in his comprehensive argument recap, the Court will likely not be able to confront the vagueness question in Weyhrauch.  Instead, the Court will have to address the actual question presented: whether the federal government must prove that a public official violated a state-law disclosure duty to prosecute that official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information.

The Court's discussion of this question focused largely on two issues:  is it proper to punish individuals in federal court for violations of state duties?  And if so, what are the proper sources of those duties?  This post, however, will focus on a subsidiary issue raised at the argument:  whether Weyhrauch's conduct violated Alaska state law.

The government first raised this issue in a footnote in its merits brief, observing that Weyhrauch "violated Alaska law prohibiting his official action on a matter that could substantially benefit or harm an entity with which he was negotiating for employment."  Deputy Solicitor General Michael Dreeben pressed this point at argument, observing first that "the underlying action in this case by Mr. Weyhrauch was prohibited by State law," and then arguing, in response to a question from Justice Scalia, that "substantive state law prohibited [Weyhrauch] from taking official action with respect to a company whose interests would be benefited when he was negotiating employment [with that company]."

The law on point is as clear as Mr. Dreeben suggests; Alaska Stat. §24.60.030(e)(3) provides that a legislator may not "take or withhold official action or exert official influence that could substantially benefit or harm the financial interest of another person with whom the legislator is negotiating for employment."  What is less pellucid, however, is whether that statute is helpful in resolving this case.  Mr. Dreeben suggested that statutes like Section (e)(3) are instrumental in honest services prosecutions because they enable the government to show that an official intentionally violated his duty.  Here, for example, the existence of a state law forbidding Weyhrauch's alleged conduct makes it more likely that Weyhrauch knew he was acting wrongfully.  But arguments that the government can prove intent under the honest-services statute are question-begging, for they assume that the government has already established the violation of a duty.  And the question presented in Weyhrauch is whether there is a duty at all.  The Alaska statute thus sheds little light on the issue before the Court.

At bottom, then, the fact that Weyhrauch's conduct may have been prohibited by Alaska law is really only relevant as an alternate theory of prosecution under the honest services statute:  that Weyhrauch deprived Alaskan citizens of their rights to honest services by engaging in forbidden acts.   Both parties agree that this theory is a valid one; arguing on behalf of Mr. Weyhrauch, Donald Ayer conceded that if the government wants to pursue a prosecution on that theory, it would "have every right to."  Mr. Ayer argued, however, that the government cannot prevail on that theory as a matter of fact, because there were no employment negotiations taking place, and because Weyhrauch did not vote in "the way that the conflicting interest would have had him vote."  Here, in the words of Justice Stevens, Weyhrauch could "win on the facts, not the theory."

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