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4 the government? Ibid. Does it also apply “to private individuals who contract with the public?” Ibid. Or does it apply to “everyone” who owes some sort of fiduciary responsibility to others, including (say) a corporate officer? Ibid. What source of law, too, should a court consult to answer these questions? Must a fiduciary duty arise from positive state or federal law, or can it arise from general trust law, “a corpus juris festooned with various duties”? Id., at 417–418. All these questions, the dissenters observed, had long divided lower courts and remained unanswered.

Today, the Court returns to these quandaries. The jury instructions in this case sought to identify at least one instance when a duty of honest services arises—namely, when a private individual has “ ‘dominated and controlled any governmental business’ ” and “ ‘people working in the government actually relied on him because of a special relationship he had with the government.’ ” But that formulation, the Court holds, is “too vague” to pass constitutional muster. Ante, at 10. That is so, the Court reasons, because it could result in the conviction of anyone whose “clout exceeds some ill-defined threshold” and thus sweep in “effective lobbyists” exercising their First Amendment right to petition the government. Ibid. The Court also pauses briefly to address two alternative tests the government suggests for defining when a duty of honest services may attach. But the Court takes no view on the first and rejects the second. In the end, we may now know a little bit more about when a duty of honest services does not arise, but we still have no idea when it does.

It’s a situation that leaves prosecutors and lower courts in a bind. They must continue guessing what kind of fiduciary relationships this Court will find sufficient to give rise to a duty of honest services. For them, it is back to the drawing board in their indictments and their jury instructions. But they are not the main victims here. That plight belongs to private citizens. In this country, a criminal law