Fighting Corruption and Obstacles to Criminal Prosecution — (Part II of II)
There is no universal definition of corruption. Frankly, the term can be narrowly defined to focus on bribery or it can be given a wider application, extending to abuse of power. Transparency International defines corruption as “the abuse of entrusted power for private gain.”
Frankly, it depends on the official involved and the purpose of an institution. As a broad concept, corruption becomes an ethical and moral concern, where we expect our institutions and public servants to avoid influences that prevent them from serving the country’s general welfare and public good. Corruption has a number of impacts on a society, costing-people money, their freedom, their health and sometimes even their lives.
Criminal corruption prosecutions focus on bribery and illegal gratuities. But proving bribery and illegal gratuities as currently defined in the criminal code, and interpreted by the Supreme Court, is difficult.
Over the last twenty years, the Supreme Court has interpreted existing statutes to make criminal prosecutions of corruption cases more difficult. As a result, until Congress amends and clarifies the existing statutes, criminal prosecutions will be tailored to those egregious cases. The likelihood of Congress reforming these laws in order to bring greater scrutiny to their own behavior is unlikely, especially in our cynical political environment.
The Supreme Court’s legacy here began with the Sun Diamond case in 1999 (here), when Sun Diamond, an agricultural trade association was charged with violating the illegal gratuities statute that prohibited giving of anything valuable to a present, past or future government official “for or because of any official act performed or to be performed by such public official.” The indictment against Sun Diamond alleged that it gave illegal gratuities to then-Agriculture Secretary Michael Espy while he was considering two matters in which Sun Diamond was interested.
The indictment did not claim a connection between the gratuities in question and the matters under review, meaning that the gratuities were not made in exchange for a specific decision on these matters.
In a unanimous decision, the Supreme Court held that to sustain a conviction because there has to be a clear quid-pro-quo link between the gratuity and the performance of the specific official act. The Court ruled that the giving of gratuities to officials, by virtue of their position, is not equivalent to bribery of officials for the performance of a specific official act.
In 2010, the Supreme Court attacked another anti-corruption tactic by narrowing the definition of what was known as honest services fraud. (Here). Supreme Court reversed Jeffrey Skilling’s conviction arising out of the Enron collapse and restricted use of the honest services fraud statute, which was often used in political corruption cases.
The most significant decision in curtailing corruption prosecutions was the Supreme Court’s decision in rejecting the conviction of former Virginia Governor Bob McDonnell. (Here). The federal bribery statute, 18 U.S.C. Section 201, makes it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act.”
A jury convicted McDonnell for helping a wealthy businessman by setting him up for meetings with government officials in Virginia to promote a dietary supplement. The businessman gave McDonnell and his wife several gifts totaling over $175,000 and loans. The Supreme Court ruled that such introductions and meetings did not constitute an “official act” under existing bribery laws. Specifically, the Supreme Court held that setting up a meeting, talking to another official on behalf of a constituent, or organizing an event did not fall into the “official act” definition. The Supreme Court recognized that the facts of the case were “tawdry” and “distasteful.”
To prove a bribe after the McDonnell decision, federal prosecutors have to present evidence that an official performed an act such as voting on a bill or approving a new policy in exchange for the payment of money or any other item of value.
The impact of the McDonnell case was felt by prosecutors when prosecuting Senator Robert Menendez. After a hung jury, prosecutors decided to drop the case against Senator Menendez. The underlying facts involved allegations that a wealthy businessman gave Senator Menendez lavish gifts and campaign contributions in exchange for political assistance on issues before federal regulators.