If children made the laws, everything we do that isn’t fair would also be illegal. The problem critics find in a federal law that could easily be called the Chicago doctrine is that it judges human conduct as a child might: behavior a parent would tell a child is bad, or an editorial writer a reader, or a prosecutor a jury, can be punished because—well, because it ought to be.
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The table was set for the Supreme Court to take up these cases by Justice Antonin Scalia’s blistering dissent early this year in another notorious Chicago case. The court declined to review the 2006 convictions of Mayor Daley’s former patronage chief, Robert Sorich, aide Timothy McCarthy, and Streets and San official Patrick Slattery for corrupt city hiring practices. Scalia disagreed. He wrote, “If the ‘honest services’ theory . . . is taken seriously and taken to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer. Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.”
Scalia noted a lack of consensus among appellate courts as to what the “intangible right of honest services” actually means. For instance, the Fifth Circuit in New Orleans requires that a state law be broken; the Ninth Circuit, encompassing Alaska, does not. The Seventh Circuit, here in Chicago, found it sufficient that Sorich, McCarthy, and Slattery had violated a 1983 consent decree limiting patronage hiring. “It may well be,” said the three-judge panel that upheld their convictions, “that merely by virtue of being public officials the defendants inherently owed the public a fiduciary duty to discharge their offices in the public’s best interest.”
Anton Kerner sat in court every day that Thompson testified. If the honest services theory holds any water, he was thinking, it calls into question the services Thompson failed to perform for Hollinger stockholders. “I seek not malicious satisfaction in the misfortune of others,” Kerner e-mailed me at the time, “but only my father’s vindication in highlighting Thompson’s ironic troubles at Hollinger.”
Henning told the Tribune October 14 that Black and Skilling stand a good chance of being awarded new trials. When I talked to him a few days later he was less certain, but at the very least he expects the Supreme Court to set limits on the honest services law and remand the Black and Skilling convictions to the appellate courts to reconsider in light of those limits.
