About Matthew Stephenson

Professor of Law, Harvard Law School

Guest Post: Further Developments on French Law Regarding Anti-Bribery Prosecutions by Multiple States

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

The Supreme Court of France recently reversed two criminal judgments on the application of the international double jeopardy principle (or ne bis in idem, as the principle is known in Europe and elsewhere) in transnational bribery cases (and others). Taken together with some other recent developments, these developments suggest a renewed determination in France to regain leadership from US prosecutors in enforcing international bribery norms in France.

The ne bis in idem principle limits prosecutors’ power to pursue individuals or companies already convicted or acquitted elsewhere, including in other countries. Several European countries have domestic laws endorsing this principle; in France, the prosecutor is not bound by non-French outcomes if the French prosecution is “territorial” (that is, if an element of the offense took place on French soil) but cannot prosecute a defendant already pursued elsewhere if the only French basis for prosecution would be so-called “extraterritorial” principles (such as French citizenship of the perpetrator or the victim). Separately, a number of Europe-wide treaties, the most effective of which is the Convention Implementing the Schengen Agreement (CISA), have provisions that, with some exceptions, basically mean that no one can be prosecuted twice in Europe for the same offense.

But these provisions do not apply to US prosecutors, who are by far the most aggressive and effective pursuers of cross-border crimes such as overseas bribery. US courts interpret the Double Jeopardy clause of the Fifth Amendment to mean only that a single sovereign cannot prosecute the same defendant twice for the same offense. Some have argued that the US position creates a tension with Article 4.3 of the OECD Anti-Bribery Convention, which provides that when more than one country is competent to prosecute, they must consult to “determin[e] the most appropriate jurisdiction for prosecution,” clearly contemplating that only one country prosecute a given defendant for the same acts. But for reasons I have explored elsewhere, as well as in this space here and here, US prosecutors have not followed the spirit of Article 4.3, instead acting as the “final arbiter” of outcomes around the world, not hesitating to bring actions if they deem non-US outcomes insufficient.

Two formally unrelated decisions of the Paris Court of Appeals in 2016 – the ones that the French Supreme Court just vacated – seemed to complicate matter still further: Continue reading

Can U.S. History Teach Us Anything Useful Against the Fight Against Corruption in the Developing World Today?

A little while back I attended a very interesting talk by California Supreme Court Justice Mariano-Florentino Cuellar about a paper of his, co-authored with the political scientists Margaret Levi and Barry Weingast, entitled “Conflict, Institutions, and Public Law: Reflections on Twentieth-Century America as a Developing Country.” It’s a short, provocative paper, well worth reading for a number of reasons, but what I really want to focus on here is less the substance of the paper itself than the broader theme, captured by the paper’s subtitle, that it may be valuable to think about the pre-World War II United States as not so different from modern developing countries. Most relevant for readers of this blog, it may be worth looking to U.S. history (and the history of other developed countries) to better understand the process by which endemic public corruption may be brought under control.

The Cuellar-Levi-Weingast paper itself touches on, but doesn’t really delve into, this issue. Nonetheless, it got me thinking about three features of the historical U.S. struggle against systemic corruption—a struggle that, while certainly not complete, does appear to have successfully transformed the United States from a system where corruption was the norm (with some happy exceptions) to one where integrity is the norm (with some unhappy exceptions). Importantly, each of these three observations casts doubt on prominent claims in the modern debate about fighting corruption in the developing world: Continue reading

Is Trump Administration Corruption a Winning Issue for Democrats this November?

The corruption of the Trump administration is bad news for the United States—will it also prove to be bad news (politically) for Trump’s Republican Party allies? A number of astute political commentators have recently argued that the answer is yes. Most notably, Jonathan Chait published an article last week making the case that “corruption … is Trump’s greatest political liability,” and that even though Trump himself is not on the ballot in the 2018 midterm elections, it would be wise politics for the Democrats to focus on the corruption of the Trump administration in their quest to retake one or both chambers of Congress.

Chait notes, as an initial matter, that despite Trump’s historic unpopularity, Democrats face two interrelated challenges: First, there’s just so much negative news about Trump—from the Russia investigation to his racism and misogyny to the lurid revelations regarding his crude attempts to cover up an affair with an adult film actress—that it’s hard to focus on any one thing. Second, and more importantly, the majority of Trump’s supporters already knew back when they voted for him that he was a crass, crude, adulterous bully and bigot–which means that pointing out his infidelity, his bullying, and his bigotry now isn’t likely to have much impact. (The Russia investigation is another matter, but Chait suggest that it’s too abstract and complex for most voters.) Corruption, according to Chait, is the one story that could move the needle, even with Trump supporters. Chait’s reasoning (presented in a somewhat different order from his original article) runs as follows: Continue reading

Tracking Corruption and Conflicts of Interest in the Trump Administration–April 2018 Update

Last May, we launched our project to track credible allegations that President Trump, as well as his family members and close associates, are seeking to use the presidency to advance their personal financial interests.Just as President Trump’s son Eric will be providing President Trump with “quarterly” updates on the Trump Organization’s business affairs, we will do our best to provide readers with regular updates on credible allegations of presidential profiteering (despite the fact that Eric Trump seems to think this is a violation of his family’s First Amendment rights). Our April 2018 update is now available here.

There are not too many new items in this month’s update, though there have been some additional stories on Jared Kushner’s potential conflicts of interest, most notably concerns raised about his White House meetings last year with representatives of financial institutions that subsequently provided substantial loans to Kushner family companies. There was also another example of mostly trivial but blatantly improper use of the presidency as a marketing tool, with Trump Organization golf courses ordering tee markers with the presidential seal, in clear violation of a law forbidding such private, non-official uses of the seal. (The tracker doesn’t include a discussion of allegations that EPA Administrator Scott Pruitt received a below-market-rate apartment from an industry lobbyist, as this seemed sufficiently removed from issues related to the personal enrichment of Trump’s family and inner circle, but Rick has a good discussion of the ethics issues raised by the Pruitt situation in yesterday’s post.)

As always, we note that while we try to include only those allegations that appear credible, we acknowledge that many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.

Announcement: PAR Blog Symposium on “Corruption and Anti-Corruption in the 21st Century”

Here at GAB we’re always thrilled to see more useful discussion of corruption-related issues in the blogosphere. I’m therefore delighted to announce that the Public Administration Review is organizing a special “blog symposium” on “Corruption and Anti-Corruption in the 21st Century,” and is soliciting contributions from anticorruption experts. The symposium editors, Liz David-Barrett and Paul Heywood, provide the following overview of the symposium theme and the sorts of contributions they’re looking for:

It is a quarter of a century since the launch of the global anti-corruption NGO, Transparency International. In those 25 years, corruption has become a major focus of academic research, while seeking to curb corruption has become a core preoccupation of ever more international organisations, national governments, dedicated agencies and civil society groups, as well as an issue with which the private sector increasingly engages.

Yet many question what has really been achieved and bemoan our seeming inability to distill research and experience into effective lessons for action. Scholars and practitioners alike complain that they lack channels through which to share ideas and learning, and that all too often their respective agendas and insights fail to connect. And many international organisations, including the World Bank, IMF and OECD, are reassessing their approaches. This blog symposium seeks to develop an open and engaged dialogue to facilitate learning.

We invite scholars and practitioners to contribute posts on the topic of Corruption and Anti-Corruption in the 21st Century, which:

  • Showcase new approaches to understanding and tackling corruption.

  • Share learning about how change can be encouraged, achieved and sustained.

  • Exchange ideas on how to evaluate the impact of anti-corruption interventions.

Those interested in contributing should submit a proposal/abstract by midnight GMT on April 27th (two weeks from today); the proposal should not exceed 150 words, and should outline the main argument and examples to be discussed. The submission should also include a brief bio of the author(s), not to exceed 100 words. Please send your proposal by email to e.david-barrett@sussex.ac.uk and Paul.Heywood@nottingham.ac.uk, and mark the subject line “Blog Symposium Proposal.” The editors will invite 20 authors (or author teams) to contribute, and will notify the selected authors on May 11th. Invited authors should submit their completed blog posts (1200 words max) by June 1st, and shortly thereafter the blog posts will then be published in an online symposium hosted by the Public Administration Review.

Here at GAB, we look forward to reading (and perhaps responding to) what we’re sure will be a set of insightful and provocative contributions in this symposium.

An Encouraging, Albeit Limited, Development in the Emoluments Clause Litigation Against Donald Trump

Sometimes it feels great to have been wrong. Last week, a United States District Judge ruled that a lawsuit brought by the District of Columbia and the State of Maryland against Donald Trump for alleged violations of the Constitution’s Foreign and Domestic Emoluments Clauses could go forward (at least for now). More specifically, the judge rejected President Trump’s argument that the plaintiffs lacked “standing,” as well as various related but distinct challenges to the court’s jurisdiction to hear the case.

When the first Emoluments Clause suits were filed against Trump (three have been brought so far, in different courts by different plaintiffs), I was one of many commentators who predicted that the cases would be dismissed on jurisdictional grounds. That prediction seemed borne out when the first of these cases, brought by the Citizens for Responsibility and Ethics in Washington (CREW) was dismissed on jurisdictional grounds last December. While some of the legal reasoning of that decision was questionable, I’d assumed that other courts would follow suit, on the logic that most judges would want to avoid having to decide these cases on the merits, and the jurisdictional doctrines are sufficiently malleable that a competent judge would be able to write a defensible opinion dismissing the cases for want of jurisdiction. (Initially I also fretted that a jurisdictional dismissal could be exploited by Trump and his allies to imply that the courts had rejected the merits of the argument that Trump’s mixture of his business affairs and his public office crosses a constitutional line, but on further reflection I now tend to think no development in these cases short of a Supreme Court ruling on the merits—and possibly not even that—would have a measurable impact on public opinion.) So it came as a welcome surprise that the ruling last week held that the Emoluments Clause suit can proceed.

There’s already been a fair bit of coverage of the ruling (see, for example, here, here, here, and here), and I’m not sure if I have that much to add, but since I’ve been commenting fairly regularly on developments in the Emoluments Clause cases, I’ll make a few additional observations: Continue reading

Guest Post: Tackling Health Sector Corruption—Five Lessons from Afghanistan

GAB welcomes back Mark Pyman, Senior Fellow at the London Institute for Statecraft, who previously served as Commissioner of the Afghanistan Joint Independent Anti-Corruption Monitoring and Evaluation Committee (MEC). He contributes this post together with Hussain Rezai, a researcher at MEC.

Despite the horror stories, interesting things are happening on tackling corruption in Afghanistan. Besides the progress (discussed in previous posts) on education and procurement, a major anticorruption initiative has been underway in the Afghanistan health system since June 2016. The initiative, which is another surprising (if qualified) anticorruption success story in a very difficult environment, offers five lessons for anticorruption practitioners and health ministers in other countries. Continue reading