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.
- 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.