As Phil and Rick pointed out a few months ago, America’s domestic anti-bribery laws and the attendant court interpretations are, for lack of a better term, a hot mess. In principle, the crime of bribery is straightforward: To secure a conviction, the prosecutor need only convince the jury that (1) there was some agreement (explicit or otherwise) whereby (2) the official would receive something of value (3) in exchange for using his official position in some manner. Unfortunately, though, that burden of proof often becomes far more complicated when the alleged bribe recipient is a high-ranking elected official. When a politician regularly solicits campaign contributions and simultaneously wields political influence to the benefit of constituents, it is often hard to see where politics ends and corruption begins. And after the U.S. Supreme Court’s decisions in cases like Citizens United and Skilling, prosecutors are left wondering when the corrupting influence of money on politics can still be prosecuted as “corruption.”
Today, I want to step back from this confusion and distill a few lessons that I believe still hold true for any US prosecutor investigating an elected official for bribery. To do that, I consider allegations that have been made against four past and present governors — Rod Blagojevich (Illinois), Andrew Cuomo (New York), Don Siegelman (Alabama), and Robert McDonnell (Virginia) — and ask one loaded question: what does it take to prove that an elected official misused his position in exchange for something of value?
- For Better or Worse, You Can’t Convict for Politics-as-Usual: Setting aside the question of whether an explicit quid pro quo agreement must be proved, the most important practical goal in any bribery case against an elected official is to show that the transaction at issue was more than just political horse-trading. If a prosecutor cannot piece together enough details to frame the story in this way, then the case is likely doomed. This was the lesson that prosecutors learned by way of hung jury in the first trial of former-Illinois Governor Rod Blagojevich, and it is the principal reason that Gov. Andrew Cuomo’s first big corruption scandal died out quickly. In December 2011, a foreign gaming company and an associated trade group donated more than $2 million to a lobbying group set up at Cuomo’s urging. A few weeks later, Cuomo made the company’s proposal to build a casino and convention center in Queens a centerpiece of his State of the State address, an odd move for a governor who never campaigned on gambling and who led a state where casinos were constitutionally banned. Though this conduct spurred a few ethics questions and led to a push for new disclosure laws, it never led to a full investigation let alone a prosecution. Why not? Well, much like Blagojevich’s counsel at his first trial, Cuomo’s representatives were able to spin the story as one of traditional lobbying rather than an instance of this-for-that corruption. And there weren’t enough tawdry details of backroom winking and nodding to paint these events in a more compromising light.
- Campaign Contributions Can be Bribes. Maybe. Sometimes.: Assume you can connect the dots between donation and action, and convince the jury that a backroom deal crossed the line from politics-as-usual to shady dealing. Up next is proving that the elected official got something of value in exchange. Here’s the problem, though: While this task may be easy when a politician stuffs bribe money in his freezer, it gets far more complicated when the alleged benefit takes the form of a campaign contribution. Consider the case of Governor Siegelman, who allegedly appointed a health company CEO to a statewide hospital board after the CEO offered to pay $500,000 to retire debt held by a state lottery advocacy group set up by the Governor. The prosecution of Governor Siegelman turned on one crucial question: did he personally guarantee the group’s debt, such that he would benefit financially from the contribution? The evidence was disputed on this point — as years of scathing media reports have made clear — but the prosecution carried the day at trial and on appeal. The lesson? If you hope to prosecute campaign contributions as a bribe, it’s best if you can show that the contribution either kept money in, or added money to, the official’s wallet. Best-case scenario for prosecutors is that the official would have been on the hook for the campaign debt. With or without that evidence, though, the strongest cases will be those where the group receiving the contribution is closely aligned with the official or his principal campaign issues, as they were in the case of Governor Siegelman.
- The More “Official” the Act, the Better: I’ve posted before about the recent conviction of former-Governor Robert McDonnell, so I won’t repeat his story at great length here. It will suffice to offer the key takeaway from his case: even where a prosecutor can both (1) paint the deal as something other than “politics-as-usual” and (2) trace “bribe” money directly into the official’s account, it may still be difficult to show that the official actually misused his office in the requisite sense. Yes, federal domestic anti-bribery statutes reach beyond statutorily prescribed duties to acts customary of the official’s office, but as the legal battle in Gov. McDonnell’s case shows, what is “customary” is a fact-bound inquiry that often turns on the eye of the beholder. After all, it isn’t immediately obvious how hosting a reception at the Governor’s Mansion is an “official act” of a gubernatorial office. And that’s the rub — a prosecutor targeting an elected official will often face the unenviable task of drawing a line between the politician’s legal, independent influence peddling and those actions that, while neither required by law nor set in stone, are sufficiently tied to the politician’s elected office as to constitute “official acts” traded for a bribe.
The overarching moral of the story is that we should envy the prosecutor who targets the congressman who, while on tape, personally pockets a cash bribe in exchange for introducing official legislation. For the more a case deviates from that template — toward backroom deals that can be painted by the defense as legitimate lobbying or horse-trading, toward contributions to third party campaign groups, or toward “customary” actions rather than statutory duties — the harder it gets to actually prosecute.
GAB | The Global Anticorruption Blog 
So if this is the narrative that enables conviction, and if (and I suppose this is arguable) we think there are some cases that should result in conviction but won’t because they don’t fit neatly in with this narrative, are prosecutors better off avoiding them entirely, under the theories that their resources and political capital would be better spent elsewhere, or are there ways prosecutors and/or legal reformers should be tweaking their tactics? If the former, is there anything we (and interpret “we” in any way you want, I suppose) can do to fight back against corruption that realistically won’t result in a conviction?
(It seems like in any line of legal cases, but particularly among anyone working in public interest or social justice, there’s a tension between bringing only the cases that fit nicely with the easy, winnable narrative–you use resources efficiently, you don’t risk negative outcomes that might set precedent that hurts your cause–and trying to push the boundaries of that narrative in ways that, if successful, might benefit society but come with more risks. It’s obviously not a problem that’s easy to resolve, and admittedly one that goes beyond the scope of your post. However, it does seem to come up a lot in anticorruption contexts, so I’m wondering where on the spectrum to draw the line and, if we decide not to prosecute most of the varying-from-the-narrative cases, whether there’s anything else that can be done, or if there’s some hope that eventually, for some reason, we’ll eventually be able to start including more of those cases [in the anticorruption agency context, for example, perhaps the ACA can start taking on slightly riskier cases the more established it gets].)
Jordan, you discuss the scenario where a candidate personally guarantees campaign debt; it is then clear that contributions make a difference in the Candidate’s pocket. I wonder where along the spectrum of potential conviction it falls when a candidate has loaned money to their campaign with the stated intention to be repaid if fundraising does well enough. In such a scenario, there is no legal obligation that the contribution makes a difference in the candidate’s bottom line and the candidate could withdraw funds to pay themselves back as long as the campaign balance was over 0. At the same time, given that many candidates have gone so far as to take out additional mortgages so that they can lend money to the campaign (and usually do not pay themselves back unless they raise sufficient money), they are not personally financially disinterested in the fundraising. I wonder if you know of any cases where allegations of corruption arose and how they fared?