Monthly Archives: November 2020

How Grand Corruption Threatens Liberal Democratic Institutions

Posted on by
5

As regular readers may have noticed, GAB has been inactive for the past week (that is, until Rick’s post yesterday). Apologies for the lack of content – as I’m sure you can imagine, the U.S. presidential election has been consuming my attention and that of most of our regular contributors. But now that the election outcome is clear (notwithstanding President Trump’s baseless claims of election fraud and the craven complicity of his Republican Party enablers), it’s time to get back to blogging. I suspect that much (though not all) of our content over the next couple of weeks will be related to the outcome of the U.S. elections—both backward-looking evaluation of the impact of the Trump Presidency on corruption in the US and beyond, and forward-looking considerations about the anticorruption agenda under the incoming Biden Administration.

Today’s post isn’t about Trump per se, but it’s loosely inspired by both certain aspects of his presidency and his current refusal to acknowledge and accept the outcome of the election. I want to say a few words about the ways in which corruption, particularly grand corruption at the highest levels of the government, can threaten to undermine the institutions of liberal democracy (free and fair elections, formal and informal checks and balances, the rule of law, etc.). To be clear, I don’t have in mind principally the ways in which politicians might engage in corrupt conduct to help win elections (for example, vote-buying, acceptance of illegal campaign donations in exchange for favors, diverting public funds for partisan purposes, etc.), though these are of course serious and important problems. Nor do I have in mind the broader and more diffuse “institutional corruption” associated with the excessive influence of concentrated wealth, though this too is a grave concern. Rather, I want to consider how grand corruption in the highest levels of government may threaten to erode or subvert (explicitly or de facto) the basic institutional structures of liberal constitutional democracy.

Nothing of what I have to say on this topic is original; it’s all drawn from existing literature, and the arguments are likely familiar to many readers. Still, I thought it might be helpful to highlight three ways in which unchecked grand corruption may contribute to democratic backsliding: Continue reading →

Can Trump Be Prosecuted?

Posted on by
8

President Trump and diehard supporters continue to maintain on Twitter, in interviews, and at press conferences that tens of thousands of votes at the November 3rd election were fraudulently cast and that once these ballots are excluded, he will be declared the winner. But under American law only a judge can invalidate a vote, and unlike Trump sympathizers, judges demand clear and convincing evidence of voter fraud — something Trump has yet to produce (here) and is quite unlikely to be able to (here). So Joe Biden will indeed take office January 20.

While President Trump’s term in office ends at noon that day, his legal problems will not.  Indeed, they are likely to accelerate.  For whatever immunity he enjoyed from prosecution as a sitting president ends too. 

By far the greatest threat Trump faces are the investigations led by Manhattan District Attorney Cyrus Vance, Jr. and Letitia James, New York’s attorney general. Both are independently investigating criminal charges related to Trump’s dealings while a New York businessman. James may also be continuing her investigation of abuses involving Trump’s now defunct New York charity. The charges both are pursuing involve violations of New York state law, meaning a presidential pardon would do him no good. It excuses only violations of federal law.  

Continue reading →

New Podcast Episode, Featuring Claudia Escobar

Posted on by
Reply

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Claudia Escobar, a former Magistrate Judge on the Court of Appeals in Guatemala. Judge Escobar resigned her position in 2014 after exposing corruption in the judicial selection process. Judge Escobar secretly recorded a meeting with representatives of the then-ruling party, who indicated that she would be promoted if she ruled in favor of the government in an important upcoming case. Judge Escobar subsequently released the recordings, and fled Guatemala for fear of reprisals. Since then, she has been working in the United States as a researcher, consultant, and advocate, with a focus on fighting judicial corruption in Guatemala and elsewhere in the Americas.

Our interview begins with a discussion of how Guatemala’s history, including more than 36 years of civil war, has created a culture of impunity and insecurity, and how the challenges this legacy poses to the creation of a genuinely impartial and honest judicial system. Judge Escobar describes many of the problems with Guatemala’s current judicial appointment system, and the associated corruption risks. Our conversation then turned to the impact and legacy of the UN-backed anti-impunity commission, known by its Spanish acronym CICIG. Judge Escobar offers her perspective on the fight against corruption under former President Jimmy Morales and new President Alejandro Giammattei, as well as a more general discussion of the politics of anticorruption in Guatemala and the prospects for future progress on this issue.

You can find this episode here. You can also find both this episode and an archive of prior 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.

Measuring the Success of Brazil’s 2014 Anticorruption Law

Posted on by
9

In January 2014, following nationwide protests prompted by concerns about widespread corruption, the Brazilian Congress enacted a new Anticorruption Law. The 2014 Anticorruption Law was a landmark in part because it represented the shift from the traditional focus on individual bribe-takers to the bribe-paying corporations. Although a few prior statutes did address the conduct of alleged bribe payers, the Anticorruption Law both authorized much more stringent penalties on bribe-paying companies (including fines of up to 20% of a company’s gross revenue in the prior year, and even mandatory dissolution of the company in extreme cases), and also adopted a revolutionary strict liability regime for corporate corruption offenses.

More than six years have passed since the Brazilian Anticorruption Law entered into force. Has the law been effective? What do we know so far about its enforcement? On the whole, the enforcement numbers seem rather disappointing, suggesting that the law has not (yet) been deployed aggressively to sanction bribe-paying corporations in most parts of Brazil. Nonetheless, there are a variety of reasons why it would be premature to conclude from these numbers that the law has not been, or will not be, effective.

Continue reading →