Public Officials

Another area concerns the relationship between a government official and the general public. The majority of Courts define honest services fraud in this context as an undisclosed conflict of interest that deprived the public of the right to have government affairs conducted honestly and impartially. Examples range from mere nondisclosure to bias, cronyism, and disguised motives. The deprivation suffered by the public is commonly characterized as a loss of control with respect to the workings of their government.

In this context, it is important to note a key distinction: While specific intent must be proven in almost all other mail/wire fraud prosecutions, all that need be shown in the context of a public official is a failure to disclose. Thus, while the prosecution must show specific intent to convict a lobbyist under wire fraud for bribing a senator, the senator can be convicted of wire fraud merely by a showing that the bribe payment was not disclosed to the public. However, honest services fraud finds its limits in the area of campaign fraud – it can be argued that candidates do not yet owe a duty to the public like an elected official does. However, the requisite “scheme to defraud” of the mail and wire fraud statutes can almost always be found in the campaign fraud context, with the real issue being the nature of the pecuniary or property interest that was deprived.

For a public official, the standard of conduct required is akin to walking a chalk line. Any contribution should be disclosed, whether intended to influence an official decision or not. In some jurisdictions there is no requirement of specific intent or quid pro quo; mere failure to disclose is sufficient to work a deprivation of the public’s right to a fair and openly run government. Just as full disclosure is required in the context of political contributions and lobbying, any financial or ownership interests must also be laid out for public scrutiny. An interesting caveat is that a political candidate should not be be prosecuted for honest services fraud in the campaign fraud context, because it is argued that as an unelected figure they owe no duty to the general public.