The prosecutors said even if the high court declares the statute unconstitutional, it will have minimal impact on their case against Blagojevich.
Others don't agree and believe the court's ultimate decision may have a profound effect on public corruption cases nationwide.Proving up 21st century public corruption is typically more complex than tracking an envelope of cash or catching a pay-off on hidden camera. It's more about peeling back relationships - the cozy deals, the traded favors that over time carry the smell of fraud but may not spell out a specific: "You do this for me. I do that for you." Two decades ago, Congress gave prosecutors an important corruption-fighting tool. It defined schemes to defraud with the words "to deprive another of the intangible right of honest services." "Prosecutors love it because it provides flexibility to tell a story that other statutes don't provide," said Pat Collins, former prosecutor. From Ryan to Rezko, Fawell to Warner, Loren Maltese to Tomczak, and now Blagojevich- these cases are all built around "theft of honest services." You take an oath. You have a duty to perform your job honestly. "It's an idea we all agree with. The difficulty is… it's so broad and amorphous, it can give rise to prosecutorial overreaching," said Professor Harold Krent, Dean, Kent College of Law. Prof Leonard Cavise 10:31 "The only thing that's good about it is it becomes the best toy in the prosecutor's toy chest," said Professor Leonard Cavise, DePaul Law School. The defense bar argues "honest services" is so vague that prosecutors can define the crime to their preference and turn ethical lapses into felonies, i.e. the government employee who skips work for the ballgame, uses the office copier to make personal fliers, or makes private calls on the taxpayer's dime. "I mean it can be that minor -those types of things elevated to honest services violations, and in some cases they actually have been," said Marc Martin, defense attorney. Though the Supreme Court upheld the "honest services" statute last year in the case of Robert Sorich, Justice Antonin Scalia dissented saying the statute is so expansive, "It invites abuse by headline grabbing prosecutors." "If Scalia thinks it's too vague, if Scalia thinks it's too prosecution oriented, this statue as presently written is going down," said Professor Cavise. The Supreme court is hearing appeals on three honest services cases - one involving an Alaska state legislator, and two others from the Corporate sector - ex Newspaper baron Conrad Black and former Enron exec Jeff Skilling. The question at 219 S. Dearborn is what might a change in the statute mean for "the People versus Rod Blagojevich. Twelve of the counts in his indictment are built on "theft of honest services" by misusing public office for private gain. "That's the offense that predominates the indictment and much of those would be very difficult to prove in the absence of the honest services statute," said Krent. "I think the case clearly stays alive because there are some other counts and property counts they can rely on, but I think they're going to have to restructure the case in a significant way- if the statue is gutted," said Collins. Many observers believe the "honest services" statute won't be gutted, but will be more tightly defined to describe what specific acts constitute the crime. The result could mean a burden of proof more difficult for prosecutors to reach.