Can A Private Citizen Perform An Official Act?

Over the last several decades, the Supreme Court has taken steps to limit the reach of honest services fraud prosecutions. As far back as the Supreme Court’s decision in McNally v. United States, 483 U.S. 350, 360 (1987), in which the Supreme Court struck down the doctrine under the mail and wire fraud statutes, the Court has declined to construe those statutes “in a manner that leaves [their] outer boundaries ambiguous and involves the Federal Government in setting standards … of good government for local and state officials.” Even after Congress resurrected the doctrine by statute, the Court has continued to prevent the law from being used in a manner that deprives defendants of their right to due process. While it is understandable that prosecutors would seek to use whatever tools they have to punish “deception, corruption, abuse of power” and other forms of wrongdoing, “not every corrupt act by state or local officials is a federal crime.” Kelly v. United States, 140 S. Ct. 1565, 1574 (2020). In this article, we discuss the importance of the “official act” requirement established in McDonnell v. United States, 136 S. Ct. 2355 (2016), and how its logic should lead to a parallel requirement that private citizens should not be chargeable with the commission of official acts as part of a scheme to deprive the public of honest services.