According to Reuters, Skilling's defense is going to argue that his trial should've been moved away from Houston, that failure is not a crime, and that the prosecution theory of "honest services" that was used to convict him was, basically, full of shit.
I'm no legal scholar here, as I've said many a time, so I'll let Reuters sum up the "Honest Services" theory for you:
"That theory holds that Skilling robbed Enron and its shareholders of his 'honest services' by setting a corporate agenda met by fraud while he and other top executives hid the company's troubles with lies and murky financial statements."
Honest services fraud was originally adopted by Congress in 1988 as an addendum to federal mail and wire fraud statutes. It was originally intended to prosecute government fraud but has been used to convict fraud and corruption in the private sector. Here's a list of recent public and private sector scalawags who've had "honest services" thrown in with their other charges of malfeasance:
Rod Blagojevich (who's about to give a talk, “Ethics in Politics: An Evening with Former Governor R. Blagojevich," at my alma mater--I shit you not)
Former Illinois Governor, George Ryan;
and newspaper magnate, Conrad Black, whose six-and-a-half-year jail sentence for mail fraud and obstruction of justice may also be overturned tomorrow.
One can only imagine how a law that was originally intended to prosecute government corruption but is also used to address corruption in the private sector will fare in the Roberts court. Though Roberts had promised Congress that he wouldn't legislate from the bench, that he would only "call balls and strikes," he and his conservative co-conspirators have decided, as I heard one journalist say, "create their own game," caring nothing for precedent, practicality, or even common sense if they run counter to their own ideology.
Remember their Lilly Ledbetter decision, when Alito decided that: "We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented . . . within the period prescribed by the statute." In other words, if you're being paid less because of discrimination, you have to fail your lawsuit while you're being employed--as though all our wages are public record and we can just walk up to our bosses and/or H.R. Departments, say, "Hey, I think you guys are paying me less because I'm [fill in the blank], could you open your books so I can see if I'm right?"
How about when SCOTUS upheld Congress's Partial Birth Abortion Ban Act? These self-proclaimed preservers of precedent were all of a sudden responsible for, as WaPo put it at the time, "marked the first time justices have agreed that a specific abortion procedure could be banned. It was also the first time since the landmark Roe v. Wade decision of January 1973 that justices approved an abortion restriction that did not contain an exception for the health of the woman." Justice Kennedy said, in his decision, "The government may use its voice and its regulatory authority to show its profound respect for the life within the woman."
In Parents Involved in Community Schools v. Seattle School District No. 1, the Court ruled against assigning students to public schools solely for the purposes of creating some sort of "racial balance" and that said racial balance was not a compelling state interest. Roberts also snarkily added, "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
And we all know how the Roberts court overturned a century of legal precedent and gave "personhood" and Free Speech rights to corporations in their Citizens United decision (though, in Morse v. Frederick, this same Court stated that high school students don't necessarily have the right to free speech if that speech gets in the way of their meting out school discipline).
As Jeffrey Toobin noted in his New Yorker piece about Roberts, "No More Mr. Nice Guy," last year:
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
So, it doesn't take a significant use of one's imagination to figure out where Roberts' court will dump the notion of "Honest Services." Scalia has already been noted as saying that the statute is soooo sweeping it could be used against "a mayor for using the prestige of his office to get a table at a restaurant without a reservation."
Expect Scalia to right the majority opinion. Expect an effective weapon to prosecute graft and corruption (Lord knows, it's hard enough as it is) to be blithely swept aside by this (retro-)activist Court, who has absolutely nooooooo problem with obliterating laws they simply don't agree with. Expect the usual sturm und drang that's becoming all-too-familiar with each reactionary Roberts decision. Expect Jeffrey Skilling, Conrad Black, and any millionaire Club Fed prisoner with a dime-store lawyer to be set free any moment now. Expect placing any limits on corporations and/or their malfeasance to become that much harder. And definitely expect to be pissed for days to come.
I expect you to come back here so I can say, "I told you so."