Monthly Archives: October 2019

Guest Post: Fighting Police Corruption in London, and Beyond

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Today’s guest post is from Matt Gardner, who previously served as the Head of Anti-Corruption at New Scotland Yard, Metropolitan Police, and who is currently covers police-related issues or CurbingCorruption.Com (whose launch in October 2018 GAB covered here).

The Metropolitan Police in London (the “Met’) is a large city force, with 30,000+ officers policing a city of over 10 million on any working day. Even in a well-trained professional force like this one, keeping police corruption down to low levels is a constant challenge. The ordinary difficulties of tackling corruption are compounded by the authority that the police are entrusted with: If you are a thief, a sexual predator, a bully, or lean towards corruption and criminality, joining the police service in any country is an excellent career choice. You can hide behind your warrant card, police ID, or uniform.

So what can police departments do to keep corruption within their own ranks in check? In this post, I want to highlight the four most important tools for keeping police corruption at low levels, using the Met’s experience to illustrate each of these elements: Continue reading →

Quid Pro Quo: A Primer

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Thanks to the Trump impeachment imbroglio, Americans are brushing up on Latin.  Or at least on the Latin phrase quid pro quo. Though Trump’s partisans and opponents are at each other’s throats about virtually everything, a consensus has emerged that if his dealings with Ukraine involved a quid pro quo, he is in trouble. The reason: the U.S. Supreme Court has repeatedly held (examples here and here) that the touchstone of the American federal crime of bribery is the presence of a quid pro quo. If the impeachment investigation were to uncover one in his Ukraine dealings, Trump would be guilty of bribery, one of three crimes, along with treason and high crimes and misdemeanors, for which he can be removed from office under Article II of the U.S. Constitution.

Quid pro quo means “this for that,” the archetypal example being someone who provides “this money” for “that action” by a public official. But the translation misleads by its simplicity, glossing over critical questions which Congress will have to answer in deciding whether Trump should be removed from office for his actions involving Ukraine:

Must the “this for that” be in the form of an explicit agreement?  Must, that is, there be a meeting of the minds between the two?

Or is a promise enough? That the payer or the recipient merely asked for something – a payment, the performance of an official act — from the other.

Must the terms of the agreement or promise be express? Stated clearly, leaving nor room for doubt. Explicit? Put into words whether written or not.

The Supreme Court, the lower courts, and academic commentators have wrestled with these questions for decades, and while not bound by their answers in an impeachment proceeding, Congress should surely pay heed to them. The federal judiciary arrived at them not during a white-hot partisan debate, with one eye on the effect of one’s chances for reelection. Instead, the answers were reached after deliberate, studied attention to the facts, to answers reached in previous cases, and to the consequences the answers would have on public servants’ future conduct.

Members of the House and Senate are not the only ones that would profit from a study of the American law of quid pro quo. Prosecutors, judges, and legislators in other nations would as well, for the quid pro quo requirement is part of all nations’ antibribery statutes (expressly stated in article VIII of the InterAmerican Convention Against Corruption and article IV of African Union Convention on Preventing and Combatting Corruption and following directly from the texts of the United Nations Convention Against Corruption (article 15), the Council of Europe Criminal Law Convention on Corruption (article 2) and the OECD Antibribery Convention (article 1)).  The United States is not the only nation with a bribery jurisprudence (here and here), but thanks to its size, aggressive law enforcement, and quality of its judiciary, its case law applying the quid pro quo standard is surely richer than most if not all.

A primer on it is below. Continue reading →

New Podcast Episode, Featuring Shaul Shalvi

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, Nils Köbis interviews Professor Shaul Shalvi, of the University of Amsterdam’s Center for Research in Experimental Economics and Political Decision-Making (CREED), about how experimental research in behavioral psychology can help us understand corruption, and unethical behavior more generally. In addition to covering some of the main experimental results on ethical behavior (some of which can be found here), Professor Shalvi also discusses how and when children develop the ability to cheat, and the shift in research on ethical decision-making from an individual perspective (studying people who make ethical decisions by themselves) to a more social perspective (studying contexts in which people make ethical decisions together). This latter perspective considers questions like how unethical behavior by some can encourage others to break ethical rules as well, and how the perception of the identity of the victim (an abstraction, like “society,” versus a concrete person or people) can affect people’s willingness to break ethical rules.

You can find this episode, along with links to previous podcast episodes, at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

One Year After Bolsonaro’s Election, How Well Is His Administration Fighting Corruption in Brazil?

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Exactly one year ago, on October 28th, 2018, Jair Bolsonaro, a right-wing congressman and former army captain, was declared the winner of Brazil’s presidential election after receiving 55.13% of the valid votes. He defeated the center-left-wing Workers’ Party (PT) candidate Fernando Haddad, ending the PT’s streak of four consecutive presidential election victories that had begun in 2002.

Brazil’s corruption problem played a major role in the election and in Bolsonaro’s victory. The Car Wash Operation had not only uncovered widespread corruption scandals during the PT administrations, but that Operation also led to the prosecution and conviction of former President Luiz Inácio “Lula” da Silva, which rendered Lula ineligible to compete in the 2018 election. Moreover, Bolsonaro centered his campaign especially on a vigorous anticorruption discourse, promising to set a new standard of public integrity and to hold corrupt companies and politicians liable for their misconduct (see here and here). To be sure, Bolsonaro did not campaign exclusively on an anticorruption platform. He also positioned himself as the defender of more conservative social values and pledged to take a hardline approach to violent crime and drug trafficking. Yet his anticorruption rhetoric undoubtedly played a key role in his victory.

Even before the election, though, some commentators expressed skepticism that Bolsonaro would undertake genuine efforts to fight corruption and strengthen the institutions needed to promote integrity, and this skeptical view has been echoed by other commentators, both inside and outside of Brazil, during Bolsonaro’s first term (see, for example, here and here).

Now, one year since Bolsonaro’s electoral victory, is a suitable time to analyze the Bolsonaro Administration’s performance so far on anticorruption related issues. Have his substantive accomplishments in this area matched his tough rhetoric?

Continue reading →

Trump’s Attempted Violation of the Emoluments Clause, and the Inadequacy of the “Services at Cost” Rationale

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In a press briefing on October 17, 2019, acting White House Chief of Staff Mick Mulvaney announced that the United States would host the 46th G-7 summit at the Trump National Doral Miami, a golf resort in Doral Florida owned by the Trump Organization. The announcement provoked widespread concern (see here and here) that this choice would violate the U.S. Constitution’s Foreign Emoluments Clause, which bars any person “holding any Office of Profit or Trust under [the United States]” from “accepting any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state,” as well as the Domestic Emoluments Clause, which bars the President from receiving any emolument, other than his salary, from the United States or any of the individual states. Following two days of complaints—not only from the ethics watchdogs and the President’s Democratic opponents, but also from some of his Republican allies—the White House abandoned the plan. So, the situation appears to have resolved itself. Nonetheless, the particular argument that Mulvaney advanced to defend against the anticipated Emoluments Clause complaints is worth considering—and debunking—lest this argument arise again in another context.

To be clear, the White House’s attempt to host the G-7 at a Trump Organization venue appears to be part of the same pattern of self-dealing that has already prompted multiple lawsuits against Trump for alleged violations of the Emoluments Clauses. As Mulvaney said on Fox News this past Sunday, “[President Trump] still considers himself to be in the hospitality business, and he saw an opportunity to take the biggest leaders from around the world and he wanted to put on the absolute best show.” Although the proposal to host the G-7 summit at the Doral resort was dropped, Mulvaney’s admission is worrying because there are reasons to suspect Trump chose the Doral property to benefit himself financially. (Consider the fact that in 2004, when the United States hosted the summit on Sea Island the organizers served 45,000 meals and paid the resort owners $3 million to reserve the entire property for 10 days.)

When Mulvaney detailed the White House’s decision-making process for the G-7 venue on October 17, he claimed the administration used neutral criteria when it made this choice (which is a bit hard to swallow given that Mulvaney stated the President suggested Doral), and that Doral was actually the best location (an assertion that is hard to assess without knowing the other venues the White House was considering). Furthermore, Mulvaney also argued that there was no Emoluments Clause violation because Doral would host the event “at cost”—that is, that Doral would only charge the government for the cost of the goods and services provided, and would not make a profit. On its face, this sounds plausible. After all, if Doral—and hence the Trump Organization—does not earn any profits on the G-7 meeting, but merely breaks even, then how can Trump have received an “emolument” from the U.S. government? If anything, the Trump Organization would have provided the U.S. government with a venue and associated amenities at a discounted rate.

Despite its superficial plausibility, there are three flaws with the argument that running the event “at cost” would eliminate any Emoluments Clause problem:

Continue reading →

Anticorruption Bibliography–October 2019 Update

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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.

Will Congressional Republicans Hold Trump to the Standard to Which They Are Held?

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It is no surprise House and Senate Republicans are finding it difficult to defend President Trump’s mixing political business with official business in his dealings with Ukraine. From the day they are elected, members are warned to keep the two separate lest they run afoul of the federal bribery law.  Nor should it be a surprise that President Trump would mix the two, for by his own admission, as a New York City real estate developer he frequently did.

House and Senate Ethics Committee Manuals both tell members “the federal bribery statute makes it a crime for a public official . . .  to ask for . . .  gifts, money, or other things of value in connection with the performance of official duties.”  The “connection” between the request and the duty performed need not be an explicit quid pro quo — contrary to what some Trump defenders say.  Were that the standard, as Justice Kennedy explained in a landmark case, an official could easily escape sanction by resort to “knowing winks and nods.” Continue reading →

Must the IMF Quantify Grand Corruption? A Friendly-But-Skeptical Reply to Global Financial Integrity

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The World Bank and IMF held their annual meetings last week, and it appears from the agenda that considerable attention was devoted to corruption—an encouraging sign that these organizations continue to treat this problem as both serious and relevant to their work. But does addressing the corruption problem effectively require that these organizations make more of an effort to quantify the problem? In a provocative post last week on Global Financial Integrity’s blog, Tom Cardamone (GFI’s President) and Maureen Heydt (GFI’s Communications Coordinator) argue that the answer is yes. In particular, they argue that the IMF should “undertake two analyses”: First the IMF “should conduct an annual assessment of grand corruption in all countries and publish the dollar value of that analysis.” Second, the IMF “should conduct an opportunity cost analysis of [] stolen assets”—calculating, for example, how many hospital beds or vaccines the stolen money could have purchased, or how many school teachers could have been hired.

This second analysis is more straightforward, and dependent on the first—once we know the dollar value of stolen assets (or grand corruption more generally), it’s not too hard to do some simple division to show how that money might otherwise have been spent. So it seems to me that the real question is whether it indeed makes sense for the IMF to produce an annual estimate, for each country, of the total amount stolen or otherwise lost to grand corruption.

I’m skeptical, despite my general enthusiasm for evidence-based policymaking/advocacy generally, and for the need for more and better quantitative data on corruption. The reasons for my skepticism are as follows: Continue reading →

International Scholars, Stay in Your Lane: The Risks of Uninformed Foreign Commentary on Corruption Cases

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Last June, a group of international scholars and jurists published an article in the French newspaper Le Monde arguing that former Brazilian President Luiz Inácio Lula da Silva (known as Lula), who was convicted and imprisoned in a case related to the Lava Jato (Car Wash) anticorruption investigation, did not receive a fair trial, and was the victim of political persecution. A couple months later, a slightly revised version of the article, styled as an open letter to the Brazilian people and Supreme Court, appeared in the Brazilian media, where it made quite a splash. The letter, which was republished on GAB last month, was signed by prominent US scholars, including Susan Rose-Ackerman and Bruce Ackerman, as well as lawyers, professors, and former judges from numerous Latin American and European countries. Echoing accusations leveled by The Intercept and other media outlets, the letter claimed that presiding judge Sergio Moro (now Justice Minister) conducted the proceedings in a partial fashion and directed the prosecution “in contempt for fundamental rules of the Brazilian procedure.” Judge Moro, the letter asserts, “manipulated substantial assistance plea bargaining mechanisms, oriented the prosecution service works, required the substitution of a prosecutor, and directed the prosecution’s public communication strategy.” Furthermore, the letter states that the Judge “wiretapped Lula’s lawyers” and “disobeyed an order from an appeal judge to release Lula”. The letter also contended that there was no material evidence of Lula’s corruption, and that his arrest, prosecution, and conviction were all prompted by the illicit political motive of excluding him from the 2018 presidential elections. In light of all this, the letter asserted that the Brazilian Supreme Court has a duty to release Lula and nullify his conviction.

These accusations are largely baseless, or at least presented in an extremely one-sided fashion that parrots what have become the standard talking points of Lula’s supporters. The Car Wash prosecutors effectively debunked the texts’ main arguments in a rebuttal also published on this blog. (The blog also published a response from Lula’s lawyers that rehashed the same talking points and alluded to as-yet-undisclosed evidence, but that didn’t otherwise counter the prosecutors’ clear documentation of the open letter’s many errors.) What most troubled me about the original article and the open letter was less the fact that these arguments were being advanced—again, by now they’re familiar pro-Lula talking points—but the fact that the texts were signed not only by lawyers, but also by renowned law and political science professors. Lawyers are expected to act as advocates. But scholars are supposed to be more judicious, more scrupulous about evidence, and more circumspect about making bold, aggressive claims on subjects whose factual and legal particularities they don’t fully understand. Continue reading →

DRC Government Members to Post Ethics Code on Office Wall, Resign if They Violate It

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The newly installed government of the Democratic Republic of the Congo has taken a major, and for the DRC, unprecedented step in the fight against corruption.  At their September 18 swearing in ceremony, each member signed an “Acte d’Engagement,” a one-page letter to Prime Minster Ilunga Ilunkamba containing an ethics code each agrees to observe.  Although the code’s provisions are nothing out of the ordinary, what is out of the ordinary is that ministers of the DRC would publicly commit to them. This represents an important milestone in the effort of the Prime Minister and President Félix Tshisekedi to arrest the corruption that has plagued the mineral-rich but desperately poor nation for so long.

Even more out of the ordinary, the signers pledge to resign if they are found to violate any code provision. Most unusually, they agree to post a copy of the letter in their office and to circulate it to their immediate staff and the civil servant they oversee. The one-page letter with code is written in non-technical, easily understandable prose. Ministers cannot excuse a violation by claiming they did not understand it, and its wide circulation and posting in the ministers’ offices increases the chances they will be held to it.

There is no reason why the governments of other nations where corruption is endemic should not follow the DRC’s lead.  They too should require leaders to publicly commit to a strong ethics code and to post a copy of the code and their pledge to honor it on the wall of their office.  This will remind them and all who meet with them of that commitment.

A translation of the commitment letter/code that each DRC government member signed follows. Continue reading →