Why Bob McDonnell’s Bribery Conviction Should Be Affirmed

One of the most high-profile public corruption cases in the United States in the last couple of years (and alas, there’s some competition for that honor) is that of former Virginia Governor Bob McDonnell—a case that both Rick and Jordan have written insightfully about before. Governor McDonnell was convicted of violating federal anticorruption laws by accepting cash, loans, and lavish gifts from a local businessman, Jonnie Williams, in exchange for helping Mr. Williams secure research studies of his dietary supplement product at state institutions. Governor McDonnell assisted Mr. Williams’ efforts by arranging meetings, recommending that other state officials meet with Mr. Williams about his product (using language indicating that Governor McDonnell supported and encouraged use of the product), and encouraging state officials to arrange for the research studies sought by Mr. Williams.

Governor McDonnell appealed his conviction, and the U.S. Court of Appeals for the Fourth Circuit heard oral arguments in his appeal last week. (I can’t find a written transcript online yet, but you can listen to an audio recording of the argument here.) The governor’s primary argument on appeal is that he did not violate the relevant federal statutes because he did not perform any “official acts” on behalf of Mr. Williams. Interestingly, Governor McDonnell’s appeal has attracted support from a broad range of criminal law experts, including my Harvard Law School colleagues Professor (and retired Judge) Nancy Gertner and Professor Charles Ogletree. Judge Gertner and Professor Ogletree, along with Virginia Law School Professor John Jeffries, filed an amicus brief contending, in essence: (1) the things that Mr. Williams got from Governor McDonnell were not specific government decisions, but rather “access and ingratiation,” which do not count as “official acts,” and which the Supreme Court has said are not corrupt; (2) the broader definition of “official acts” accepted by the trial court (and reflected in its jury instructions) would render the anti-bribery statutes at issue so broad and vague as to violate constitutional Due Process rights.

Judge Gertner, Professor Ogletree, and Professor Jeffries are among the most distinguished criminal law experts in the United States. They have decades of experience practicing and writing about these issues at the highest levels, whereas I’m a comparative novice in this area, with zero practice experience. If they think one thing, and I think another, it would probably be a smart bet that they’re right and I’m wrong. All that said, I disagree quite strongly with the analysis in their brief.

A blog post is not the place to get into a detailed discussion of the nuances of the law, and this issue may seem rather parochial, especially to our non-American readers. But I actually think that the main problems with the Gertner-Ogletree-Jeffries (GOJ) brief stem from an important conceptual confusion that has implications well beyond this case, and perhaps outside of the U.S. as well. So with full recognition that I’m risking personal embarassment in advancing what might turn out to be a misguided critique, let me explain why I found the GOJ brief (and Governor McDonnell’s lawyer’s arguments along the same lines) unconvincing: Continue reading

Are Anticorruption Parties Doomed to Fail?: Purity, Pragmatism, and Reflections on India’s AAP

In February, I wrote a post about India’s first official anticorruption party, the AAP (Aam Aadmi Party or Common Man Party) and its landslide victory in the Delhi elections that put its leader, Arvind Kejriwal at the helm of the capital’s government. In my earlier post, I was cautiously optimistic about the potential for the AAP’s electoral success to lead to a major breakthrough in the fight against corruption in India. My optimism was based on the palpable excitement among voters, the outpouring of support for Kejriwal, and the AAP’s zealous promises to deliver on its anticorruption platform.

It’s now been a hundred days since the election results were announced. I was hoping, at this point, to do a post reviewing the AAP’s progress in instituting meaningful anticorruption reform and pushing for more fundamental changes in Indian politics. Alas, although the AAP has been getting a lot of attention in its first few months in office, it’s not for the reasons that I (or most of the AAP’s supporters) had hoped: the party has been consumed by infighting, allegations of dirty politics, and a general perception of dysfunction. And while the AAP’s struggles have been particularly dispiriting, it turns out that the general pattern is not that unusual: many anticorruption parties (ACPs), or parties with primary anticorruption platforms, have emerged all around the world in the last decade or two; these parties often gain power through strong rhetoric and popular support, but very quickly stumble, splinter, and often fail to make any real headway. So was my early optimism (and that of millions of Delhi voters) misplaced? Are ACPs, the AAP included, ultimately destined to fail as governing parties? Continue reading

Alert: Director General of Zambian Anti-Corruption Commission Under Pressure to Resign

Rosewin Mutina Wandi, Director General of the Zambian Anti-Corruption Commission, is under pressure to resign. Upon returning from an overseas trip last week she was greeted by a demand from the leader of a political party that she quit. Since then others have joined in, and threats are being made to organize countrywide demonstrations to have her removed from office. All this follows the Commission’s investigation of a Presidential Aide and an alleged leak to the media of a letter she wrote to the President about that investigation.

Fortunately, the Commission is standing by her. Its Board has issued a statement condemning attempts to intimidate her and supporting the professional way she has conducted herself as Director General. The statement makes it clear that the Board considers the attacks against her to be attacks against the Board and the Commission as an institution.

It is not clear yet why the sudden effort to remove the Director General. Is it her candor in acknowledging that outside pressure can sometimes be of value in fighting corruption? Or the Commission’s effectiveness in combating corruption? Continue reading

The Economist Gets It Badly Wrong on Anti-Bribery Law

Last week, The Economist published an op-ed entitled “Daft on Graft,” which argued that the enforcement of transnational anti-bribery laws like the U.S. FCPA and U.K. Bribery Act is “becoming ridiculous,” with costs that are “spiraling beyond what is reasonable,” and that we are now witnessing “a descent into investigative madness.”

If I spent all my time responding to poorly-reasoned claptrap that looks like it was written either by a shill for business lobbyists or by someone who didn’t know much about the topic, I wouldn’t have time to do anything else. But when such claptrap appears in a widely-read, well-respected publication like The Economist, I can’t just let it pass. I know, I know—it may be unfair to beat up on a short op-ed, a format that doesn’t lend itself to in-depth analysis or nuance. But still, even by the standards of op-eds in popular periodicals, this is pretty bad. The diagnosis of the problem is shrill, one-sided, and hyperbolic, and the proposed reforms are either already in place, or misguided.

Maybe the best way to approach this is to consider each of the op-ed’s four proposed “reforms” to anti-bribery law enforcement one at a time: Continue reading

Not My Neighbor’s Keeper: Military Corruption and International Peacekeeping

There are few more troubling examples of how corruption can both create and sustain violent conflict than the current crisis in Nigeria. As Liz emphasized in a recent post, many observers believe that rampant corruption may have contributed to the rise of Boko Haram, and may also be one of the primary reasons for the Nigerian military’s difficulty in combating the threat posed by this group. While Liz focused on the reasons why it might be particularly difficult to combat corruption in the Nigerian military, I would like to take up a different issue: the ways in which military corruption is currently perceived and addressed by members of the international community.

The dichotomy between the treatment of certain instances of military corruption, and the international community’s perception of the problems posed by this phenomenon, is perhaps best illustrated by the coverage that two different examples of military corruption have received in recent months. First, as mentioned above, coverage of the role that military corruption has played in Nigeria’s ability to ward off Boko Haram and its potential impact upon the surrounding region has been widespread.  Second, the Chinese government has released the names of 14 generals in the People’s Liberation Army suspected of corruption – a move that has been seen as part of a broader anticorruption effort by the new regime and that has been justified, at least in part, by the fact that these officials’ corruption has potentially undermined the “military readiness” of Chinese forces. This development has been largely viewed as a purely domestic concern for China and received relatively little news coverage.  Yet, while the treatment of these two events by the international community may differ dramatically, the root of both of these problems – military corruption – is the same.

It is not particularly surprising that the problems posed by military corruption in China and Nigeria have been treated differently by outside commentators. After all, the threat posed by Boko Haram is a serious one, with potentially significant import for international security. However the fact that there can be such a swift change between a situation in which rampant military corruption can be categorized best as simply a “local concern” – an absence of military readiness amongst a state’s armed forces or too many supplies gone missing – and instances, such as those in Nigeria, in which military corruption in one state can implicate the security of an entire region suggests, perhaps, that there may be some merit in reframing how we think about the phenomenon of military corruption.

Continue reading

Sports Anticorruption Initiatives: Hail Mary or a Home Run?

Corruption in sports—whether it be match-fixing, the systematic use of performance enhancing drugs, or bribes paid to secure lucrative hosting duties—is by no means a new phenomenon. However, as Transparency International recently noted, this type of corruption has, since at least 2010, been gaining increasing prominence both among anticorruption advocates and the broader international community. Perhaps the most striking example of this trend is the considerable coverage that the various scandals emanating from FIFA’s selection of the World Cup’s host countries has engendered over the past few years (including Melanie’s posts on this blog here and here). Yet the issue is much broader. Last year, for example, a “landmark study” revealed that criminal gangs launder more than £80 billion in the UK from illegal sports betting, and commentators have decried the “dramatic growth in reports of corruption” in sport more broadly.

In response to these increasing concerns regarding corruption in sport, a number of different initiatives have sprung up: The International Olympic Committee has created a “hotline for whistleblowers to report match-fixing and other corruption,” China recently announced that it would be cracking down on the “sport for millionaires” – golf – as part of its broader anticorruption efforts, and last month Transparency International unveiled its Corruption in Sport Initiative, which is focused on “[k]eeping sports clean.”

While it is too early to evaluate the efficacy of some of these programs, it nonetheless may well be worth taking a step back to consider the broader question of whether or not corruption in sports should be a priority for the anticorruption community. Continue reading

Anticorruption Bibliography–May 2015 Update

An updated version of my anticorruption bibliography is available from my faculty webpage.  A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here.  As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.