What is the history behind the intangible right of honest services?

Question

In 1988, the US Congress passed 18 U.S. Code § 1346, establishing that a scheme to infringe someone's right to honest services is sufficient to constitute mail or wire fraud:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services. (Added Pub. L. 100–690, title VII, § 7603(a), Nov. 18, 1988, 102 Stat. 4508.)

I can find a plethora of articles and case law analyzing exactly what conduct does and does not create criminal liability under this statute (notably Skilling v. United States, 2010), but I'm more interested in the history of the "intangible right of honest services" in a civil rights context outside of the immediate context of the mail and wire fraud statutes (18 U.S. Code Chap. 63). When I try to search "right to honest services" or similar phrases, all I come up with are articles and case law about the Federal mail and wire fraud laws rather than discussions of the underlying substantive right or any other remedies (i.e. other than criminal mail or wire fraud charges) that might also apply to it.

More specifically:

• Has the right of honest services existed for some time (or even since time immemorial), but by 1988, Congress determined that existing remedies for breaches of this right were insufficient? If so, when and how did this right develop? Was it created by statute at some point before 1988 or was it an ancient Common Law right always recognized by the courts regardless of what additional statutory remedies might be available?
• Did Congress create a brand-new substantive civil right (the right to honest services) that did not exist before and for which there had never been any remedy at all?

For example, suppose it were 1850. We could spend hours debating exactly what sort of evidence a court might accept as proof that some dastardly villain had defrauded me of honest services or transformed my honest services into dishonest ones, but would US Federal law even recognize that I had a right to honest services to begin with in the same sense as having the right to a fair and speedy public trial?

If the right to honest services does not exist outside of 18 U.S. Code Chap. 63, that's an answer. That would seem to mean that as long as I don't use the mails or interstate communication systems or otherwise invoke one of the specific clauses of the chapter (e.g. by trying to victimize a bank), then I can deprive anyone I want of honest services whenever I want and my "victims" will have no remedy.

Answer 1

Since at least 1941, particularly in the 1970s and 1980s, and prior to 1987, the courts had interpreted the mail fraud and wire fraud statutes as criminalizing not only schemes to defraud victims of money and property, but also schemes to defraud victims of intangible rights such as the "honest services" of a public official. In 1987, the Supreme Court of the United States ruled in McNally v. United States that the mail fraud and wire fraud statutes pertained strictly to schemes to defraud victims of tangible property, including money. In 1988, Congress enacted a new law that specifically criminalized schemes to defraud victims of "the intangible right of honest services."

(Source). The 1941 date refers, in part, to Weiss v. United States, 122 F.2d 675, 681 (CA5), cert. denied, 314 U.S. 687 (1941), cited by the dissent in McNally. The English law antecedent is older as the same dissent explains:

[I]n a case remarkably similar to the one before us, a public official was convicted for depriving the government of his honest services. See Trial of Valentine Jones, 31 How. St. Tr. 251 (1809). The case has been abstracted as follows:

"A, a commissary-general of stores in the West Indies, makes contracts with B to supply stores, on the condition that B should divide the profits with A. A commits a misdemeanor."

J. Stephen, Digest of The Criminal Law, Art. 121, p. 85 (3d ed. 1883).

The dissent also cites, in footnotes:

See, e.g., United States v. Holzer, 816 F.2d 304 (CA7 1987) (county judge); United States v. Silvano, 812 F.2d 754 (CA1 1987) (city budget director); United States v. Barber, 668 F.2d 778 (CA4) (State Alcoholic Beverage Control Commissioner), cert. denied, 459 U.S. 829 (1982); United States v. Margiotta, 688 F.2d 108 (CA2 1982) (party leader), cert. denied, 461 U.S. 913 (1983); United States v. Diggs, 198 U.S.App.D.C. 255, 613 F.2d 988 (1979) (Congressman), cert. denied, 446 U.S. 982 (1980); United States v. Mandel, 591 F.2d 1347 (CA4 1979) (Governor of Maryland), cert. denied, 445 U.S. 961 (1980); United States v. Brown, 540 F.2d 364 (CA8 1976) (city building commissioner); United States v. Bush, 522 F.2d 641 (CA7 1975) (city Director of Public Relations), cert. denied, 424 U.S. 977 (1976); United States v. Keane, 522 F.2d 534 (CA7 1975) (city alderman), cert. denied, 424 U.S. 976 (1976); United States v. Staszcuk, 502 F.2d 875 (CA7 1974) (city alderman), cert. denied, 423 U.S. 837 (1975); United States v. Isaacs, 493 F.2d 1124 (CA7) (ex-Governor of Illinois and ex-Director of Illinois Department of Revenue), cert. denied, 417 U.S. 976 (1974); United States v. Classic, 35 F. Supp. 457 (ED La.1940) (election commissioner).

Some private defendants have also been convicted of devising schemes through which public servants defraud the public. See, e.g., United States v. Lovett, 811 F.2d 979 (CA7 1987) (bribing mayor); United States v. Alexander, 741 F.2d 962 (CA7 1984) (bribing judge), overruled on other grounds in United States v. Ginsburg, 773 F.2d 798, 802 (CA7 1985) (en banc); United States v. Rauhoff, 525 F.2d 1170 (CA7 1975) (bribing State Secretary of State); United States v. Faser, 303 F. Supp. 380 (ED La.1969) (scheme to bribe state officials).

In Shushan v. United States, 117 F.2d 110 (CA5), cert. denied, 313 U.S. 574 (1941), the Fifth Circuit upheld the mail fraud prosecution of a member of a Louisiana parish levy board for receiving kickbacks from the underwriters of a plan to refund outstanding bonds of the levy district. Explaining why it rejected the argument that no actual fraud had occurred because the refunding operation had actually been profitable to the levy board, the court stated:

"No trustee has more sacred duties than a public official, and any scheme to obtain an advantage by corrupting such an one must in the federal law be considered a scheme to defraud."

• 117 F.2d at 115.

[Footnote 2/2]

See, e.g., United States v. Girdner, 754 F.2d 877 (CA10 1985) (candidate for state legislature); United States v. Odom, 736 F.2d 104, 116, n. 13 (CA4 1984) (sheriff); United States v. Clapps, 732 F.2d 1148, 1153 (CA3) (party chairman), cert. denied, 469 U.S. 1085 (1984); United States v. States, 488 F.2d 761 (CA8 1973) (candidates for city office), cert. denied, 417 U.S. 909 (1974).

The case also discusses cases outside the wire and mail fraud statute with similar effect.