Enforcement of Honest Services Fraud Post-Kelly v. United States

Abstract

Policing novel acts of public corruption is hard, as prosecutors must prove what really goes on behind the closed doors of politics. But, after the Supreme Court overturned numerous high-profile federal corruption convictions on the grounds of federalism principles and vagueness, it has become even harder. Over the past forty years, Congress and the Supreme Court have struggled to determine the proper role for federal prosecutors in policing novel acts of state-level corruption. In 2020, in Kelly v. United States, the United States Supreme Court eliminated the last remnants of a broad federal honest services fraud interpretation of the mail and wire fraud statutes, sending the message that the federal government cannot define good governmental behavior for state officials. If prosecutors are to play a role in policing acts of corruption that a statute does not explicitly define, state and local prosecutors must enact more inclusive official misconduct statutes to pick up the slack. This Note explores the history of anti-corruption law and the judicial narrowing that ultimately limited federal honest services fraud to incidences of bribery or kickbacks. It then explores the various ways states have attempted to combat corruption, from enacting broad statutes to adopting piecemeal approaches. Considering the landscape of state anti-corruption enforcement, this Note proposes an aggressive model state statute, which would enable state prosecutors to seek convictions on novel acts of corruption previously uncaptured by other anti-corruption statutes.