Yearly Archives: 2020

The Independence of U.S. Law Enforcement is Under Attack. Here’s What Congress Can Do About It.

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The politicization of the institutions of justice, particularly those associated with criminal law enforcement, is one of the greatest threats to the rule of law and the integrity of government. Corrupt leaders in democracies and autocracies alike seek to undermine any check on their power, thus ensuring impunity for themselves and their allies, and may also try to weaponize criminal investigations to harass and discredit political opponents. For many years, most Americans viewed this sort of threat to the integrity of the institutions of justice as something that only happened abroad, or in the distant past. Not so anymore. Under the Trump Administration, the corruption and politicization of law enforcement institutions is a significant threat to American democracy.

That President Trump lacks respect for the independence and integrity of law enforcement has been evident for some time, at least since Trump fired FBI Director James Comey. (Trump dismissed Comey in part to the FBI’s investigation into potential collusion between Trump’s campaign associates and Russia during the 2016 election, and in part because Comey wouldn’t pledge his personal loyalty to the president.) In the last month, the situation appears to be getting even worse. As has been widely reported in the media, President Trump publicly criticized the Department of Justice (DOJ) for seeking a high sentence in the case of Trump associate Roger Stone; Attorney General Bill Barr claimed that President Trump didn’t issue any specific instructions regarding the case (and complained about the President’s tweeting), but Barr nonetheless recommended a much lower sentence that the DOJ’s own prosecutors had originally requested. Barr recently made the highly unusual decision to install an outside prosecutor to oversee the case against President Trump’s former National Security Advisor Michael Flynn. In another troubling move that didn’t get as much press attention, in early February Barr issued a memo saying that any FBI investigations into 2020 candidates or their campaigns would require the Attorney General’s approval.

Trump has asserted that he had the legal right, as President, to intervene in criminal cases. This is a contested claim, to say the least. Some argue that, under the U.S. Constitution, the President has ultimate control not only over general DOJ policy, but over decision-making in individual criminal prosecutions. However, others assert that this is not so, and that the Constitution actually imposes certain limits the President’s control over individual prosecutions—most importantly, that the President cannot seek to affect a criminal case out of corrupt or self-interested motivations.

Putting the legal debate to one side for now, and assuming that Congress—if not now, then at some point in the future—would like to establish new safeguards to insulate the DOJ and FBI from the corrupting influence of an unscrupulous president, what might Congress do? I suggest three steps that Congress might take:

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Senator Warren’s Plan to Establish an Independent Task Force to Investigate Trump is a Bad, Bad Idea

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Last month, Senator and Democratic presidential candidate Elizabeth Warren made a bold anticorruption commitment. She said that, if elected, she would direct the US Department of Justice to establish a special taskforce to investigate the Trump administration for violations of US anticorruption laws—including federal bribery laws, insider trading laws, and public integrity laws. She has has called on every other Democratic presidential candidate to do make the same commitment. Given the egregious corruption of the Trump administration, Senator Warren argues, a special taskforce of this kind is necessary if we are to “move forward to restore public confidence in government and deter future wrongdoing[.]”

Senator Warren—perhaps more than any other Democratic candidate—has put the fight against corruption (both narrowly and broadly defined) at the center of her campaign, and she has generated a range of proposals to combat corruption and strengthen the integrity of US political institutions. She has many good ideas. But this is not one of them. Regardless of whether members of the Trump Administration—including the President, his family members, and members of his cabinet—have engaged in illegal corrupt acts, forming a special DOJ taskforce along the lines proposed by Senator Warren would be a bad idea—bad for the Democratic party, bad for the DOJ, and, most importantly, bad for the United States.

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Anticorruption Bibliography–February 2020 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.

Do Stronger Campaign Finance Disclosure Rules Reduce Corruption? A Critical Assessment of Transparency International’s CPI Report

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Transparency International (TI) released its latest Corruption Perceptions Index (CPI) last month. A couple weeks back, in what has unfortunately become a necessary annual tradition, I posted a warning that one should not attach significance to short-term changes in any individual country’s CPI score. Today, I want to turn to another matter. In recent years, whenever TI releases a new edition of the CPI, the organization plays up certain themes or claims that, according to TI, the CPI reveals about corruption’s causes or impact. This year, one of the main themes in the report is the connection between corruption and campaign finance regulation. As this year’s lead TI press release on the CPI declares, “Analysis [of the data] shows that countries that perform well on the CPI also have stronger enforcement of campaign finance regulations.… Countries where campaign finance regulations are comprehensive and systematically enforced have an average score of 70 on the [100-point] CPI, whereas countries where such regulations either don’t exist or are so poorly enforced score an average of just 34 or 35 respectively.” (On the CPI, higher scores indicate lower perceived corruption.)

How did TI arrive at this conclusion? The report accompanying the CPI, and the longer research brief on this topic, give a bit more explanation. TI used another index, from the Varieties of Democracy (V-Dem) project, on “Disclosure of Campaign Donations.” The V-Dem index rates countries’ disclosure requirements for campaign donations on a 0-4 ordinal scale. TI took this scale, collapsed the 0 and 1 categories into one (allegedly for “data visualization purposes,” though I’m not sure what this means), and then calculated the CPI score for the countries in each of the four categories. The results:

  • For those countries with a V-Dem disclosure score of 0/1 (no disclosure requirements or requirements that are partial and rarely enforced), the average CPI score was 34.
  • For countries with a V-Dem score of 2 (uncertain enforcement of disclosure rules) the average CPI was 35.
  • For countries with a V-Dem score of 3 (disclosure requirements exist and are enforced, but may not be fully comprehensive), the average CPI score was 55.
  • Countries with a V-Dem score of 4 (comprehensive and fully enforced disclosure requirements) had an average CPI score of 70

That looks like pretty strong evidence that strong campaign finance disclosure rules are associated with lower corruption, and that’s certainly the story TI wants to tell. As the report puts it, “Unregulated flows of big money in politics … make public policy vulnerable to undue influence.” The research brief similarly explains, “Shedding light on who donates and how much, can expose the influence of money in politics and deter corruption and other pay-to-play situations.”

The claim may ultimately be correct, but on closer inspection, the evidence TI adduces in support of that claim is deeply problematic. Continue reading →

Civil Damage Actions for Corruption: Possibilities Offered by the Mozambican Hidden Debt Scandal

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The April 2016 disclosure that Mozambican officials accepted large bribes to secretly guarantee hundreds of millions of dollars in loans wreaked enormous damage on the nation’s economy and its citizens. The “hidden debt” scandal caused economic growth to plummet and donors to freeze funding, forcing the government to make deep cuts in public spending (media accounts here, here, here, and here; selected GAB posts here, here, and here).

The Mozambique government has brought a criminal action against a number of the alleged perpetrators in its own court (Mozambique indictment) and filed a civil suit for damages against others in the London High Court (Mozambique complaint).  So far, though, no citizen has filed an action for the harm hidden debt scandal caused them.

In a recent paper, “Civil Suits for Damages by Mozambicans Harmed by the Hidden Debt Scandal,” I consider who in Mozambique might be able to bring a damage action, for what and where, and the additional legal and factual research required before one or more more suits are filed. Comments welcome.

The Bridgegate Case May Weaken a Powerful Legal Tool for Fighting Corruption in the United States

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This past January, the U.S. Supreme Court heard oral arguments in a case that has the potential to make it significantly harder for federal prosecutors to enforce public integrity laws. That case, Kelly v. United States, centers on whether two associates of former New Jersey governor Chris Christie, Bridgette Kelly and Bill Baroni, committed criminal fraud within the meaning of a federal statute codified at 18 U.S.C. § 666 (sometimes referred to simply as §666). Section 666 prohibits government agents from “knowingly or intentionally misapply[ing] property that is valued at $5,000 or more” and owned by an agency that receives over $10,000 in federal funding during any one-year period. Federal prosecutors argued that Kelly and Baroni violated §666 when they lied in connection with using public funds and property to carry out political retaliation against a New Jersey mayor who had refused to endorse Governor Christie. The alleged retaliation involved creating traffic jams by closing lanes on a major bridge (hence the moniker “Bridgegate”) using the trumped-up excuse that the lane closure was for a “traffic study.”

Kelly and Baroni were convicted at trial, but they are arguing on appeal that the prosecutors’ interpretation of §666 embraces an “astoundingly expansive theory of criminal fraud,” under which any public official could be indicted “on nothing more than the (ubiquitous) allegation that she lied in claiming to act in the public interest.” If Kelly and Baroni convince the Supreme Court to interpret §666 more narrowly, this could be the most significant change in U.S. public corruption law since the Court’s decision in McDonnell v. United States.

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Improving India’s Right to Information Law to Protect Citizens

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As I discussed in my last post, India’s Right to Information (RTI) law has proven to be a remarkably effective anti-corruption tool, for two main reasons. First, the law makes it easy for ordinary citizens to submit information requests. Second, the law creates a system of review by independent Information Commissions, at both the central and state levels, to ensure compliance. Citizens can appeal a government agency’s failure to provide information, or an insufficient or incomplete response to an information request, to the appropriate Information Commission, which are endowed with both autonomy and strong enforcement powers. But last July, the Indian parliament amended the RTI law—over the objections of both the opposition and civil society organizations—in ways that undermine the effectiveness of the law by giving the central government more control over the functioning of the Information Commissions.

My last post focused on criticizing these amendments, and I will not restate those criticisms here. Instead, I will take up another question: How should the government improve the RTI law? For while the law has indeed had a positive impact—as an anti-corruption tool among other things—its effectiveness is hampered by a number of important problems. Among the most serious is the risk of retaliation against RTI users. Such retaliation can take the form of harassment, threats, physical assault, and in some cases even murder. To take just one egregious example, this past December the activist Abhimanyu Panda was murdered in the state of Odisha, allegedly in connection with his vigorous use of the RTI law to expose corruption. (According to news reports and a fact-finding report by a civil society network, days before Abhimanyu’s murder he had filed multiple RTI applications asking for information concerning a subsidized food program intended for the poor. His requests sought information about the recipients and the grain stocks at particular locations; if there is corruption in the program, these are the sorts of documents that would be altered or made to disappear.) Sadly, Abhimanyu is far from the only victim. There have been over 442 documented attacks and over 80 murders of citizens directly related to the information they have sought under the RTI law. These cases end up being treated as criminal matters and investigated by the police—as they should be—but the institutions associated with implementing the RTI law should have a more active role in addressing and preventing the retaliation problem.

In particular, there are two measures the government could take—possibly under the existing legal framework—that would improve transparency and diminish the incentive to use the threat of retaliation to keep incriminating or embarrassing information out of the public eye. Continue reading →

Guest Post: The Infeasibility of Evidence-Based Evaluation of Transnational Anti-Bribery Laws

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Kevin Davis, the Beller Family Professor of Business Law at New York University School of Law, contributes today’s guest post, based on his recent working paper.

Academics and policymakers enthusiastically endorse “evidence-based” policymaking, for obvious reasons. (After all, what is the alternative? Faith? Popularity contests?) But while evidence—including quantitative evidence—is often helpful, we must be mindful of the limits on what empirical analysis can tell us about important topics. Take the regulation of transnational bribery. Scholars and policymakers would like to know if the current regime—laws like the U.S. Foreign Corrupt Practices Act (FCPA) and U.K. Bribery Act, and international instruments like the OECD Anti-Bribery Convention—has “worked.” That is, have these instruments reduced bribery by the firms that they cover? And did those laws have additional, possibly undesirable collateral consequences, for example reducing investment in countries perceived to be corrupt?

The most sophisticated efforts to answer these questions (see, for example, here and here and here) essentially rely on what social scientists call “natural experiments.” First, the intervention (the law or policy change) of interest, which (in a borrowing from medical terminology) researchers call the “treatment.” Next, one must identify the population of interest—say, firms or countries—and an outcome of interest (such as the frequency of bribery or the level of investment). Then, the researcher identifies the subset of those entities that are affected by the intervention (for example, the firms that fall under the jurisdiction of the new anti-bribery law); this is the “treatment group.” The researcher also identifies another subset of entities—the “control group”—that appears otherwise similar to the treatment group, but did not receive the treatment (for example, a group of firms that are outside the jurisdiction of the new law). The big difference between a “controlled experiment” and a “natural experiment” is that in a controlled experiment the researcher can randomly choose which members of the population receive the treatment (for example by randomly selecting some patients to get a new drug and giving the other patients a placebo), but in a natural experiment, the assignment of the treatment is done not by the researcher, but by some “natural” process in the world. In trying to figure out the effect of an anti-corruption law, it generally is not feasible to conduct a controlled experiment: researchers can’t decide that these firms but not those firms, selected at random, will fall under the jurisdiction of an anti-bribery law. So the best that researchers can do is to rely on natural experiments and try to account as best they can for possible differences between the control group and the treatment group by including additional control variables in a multivariate regression.

Unfortunately, when it comes to studying the effects of transnational anti-bribery laws, these sorts of studies face several fundamental challenges, which are all too often overlooked or understated. Continue reading →

What to Study in a Corruption Studies Program: Comments & Information Please

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Despite Trump lawyer Rudy Giuliani’s attempt to paint Ukraine as a cesspool of corruption to advance his client’s reelection, media reports (here and here) and assessments by the IMF and the World Bank show the country making steady progress in bringing corruption to heal. One especially promising sign is the large number of university students and mid-career professionals studying how to combat corruption. Last September Ukraine’s Anticorruption Research and Education Center (ACREC) partnered with the National University of Kyiv-Mohyla Academy, the nation’s oldest institution of higher learning, to offer a degree in corruption studies for students and a certificate for civil servants, business executives, and others in the workforce needing to know more about the topic to better do their job. Classrooms are bulging, and plans are being made to expand the number of courses.

The Ukraine program sparked the interest of other Eurasian nations in starting similar programs, and in January representatives of non-governmental organizations and universities from Armenia, Georgia, Kyrgyzstan, and Moldova met in Kyiv to learn from ACREC’s experience. Topics included whether to concentrate on students or mid-career professionals, whether, as in Ukraine, a program should be offered by a partnership between an NGO and a university, and the pros and cons of charging tuition versus seeking a grant from the government or a donor agency.

I spoke about what to teach. As the notes from my talk show, my bias is towards a heavily academic curricula, one that stresses analytical tools that prepare students to tackle a range of public policy issues. That is not the only way to teach about corruption, and indeed my friend Alan Doig has argued for a different focus.

I had planned to compare my proposed corruption studies curricula with those offered by universities and other institutions across the globe, but surprisingly little is readily available on the web.  A 2013 U4 Anticorruption Resource Centre study catalogued the courses and degree programs then offered but contains little on what is taught and many of the links to the programs are dead.  The only substantial description of a curricula I found was that of the International Anticorruption Academy, which has offered a Masters-level program in corruption studies since 2012 along with individual courses on specialized topics. (Full disclosure: one of which on local government I have taught on occasion.)

If we want more effective anticorruption policies and better implementation of those policies, we need policymakers, policy advisors, administrators, lawyers and business executives with a deep understanding of corruption and how to combat it. There is no one curricula or course that will meet everyone’s needs.  The more the global anticorruption community knows about what has been taught and what has been learned about teaching corruption, the better.  Readers with thoughts on what students and anticorruption practitioners should learn, with course syllabi, information on degree or certificate programs, and experience in or techniques for teaching about corruption are invited to share their knowledge with the GAB community.

New Podcast, Featuring Gary Kalman

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, I interview Gary Kalman, formerly (and at the time of the interview) the Executive Director of the FACT Coalition, and now the Director of the U.S. Office of Transparency International. The first part of our conversation focuses on the work Mr. Kalman did at the FACT Coalition on the push for new U.S. legislation to crack down on anonymous companies. We also discuss his vision, and top priorities, for Transparency International’s new U.S. office.

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.