Author Archives: Matthew Stephenson

Unknown's avatar

About Matthew Stephenson

Professor of Law, Harvard Law School

New Podcast Episode, Featuring David Barboza

Posted on by
1

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, I interview Pulitzer Prize winning New York Times correspondent David Barboza, best known (at least in anticorruption circles) for his investigative reporting on the vast wealth accumulated by the Chinese elite, especially his 2012 expose on the wealth held secretly by members of the family of then-Premier Wen Jiabao (see here and here). Our interview begins with a discussion of how Mr. Barboza and his colleagues were able to uncover the information they needed to substantiate this blockbuster story, and the various ways that the Chinese government attempted to block its publication. We then turn to a discussion of the broader implications of this and similar investigations, as Mr. Barboza explains why the wealth held by the families of the political elite is such a sensitive topic in China, how norms relating to the business activities of these families has changed since the end of the 1980s, and the role that Western companies played in facilitating the corrupt accumulation of hidden wealth by these elite Chinese families. At the conclusion of the interview, Mr. Barboza discusses the current anticorruption drive headed by President Xi Jinping, and whether this crackdown represents a serious effort to get at the sorts of problems that Mr. Barboza’s reporting helped to reveal, or whether the current crackdown is more of a politically motivated effort to weaken rival factions without fundamentally changing the system.

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.

In Pressuring Ukraine To Open Criminal Investigations, Trump’s Associates May Have Committed Many Crimes. But Violating the Foreign Corrupt Practices Act Probably Wasn’t One of Them.

Posted on by
2

Right now, the biggest corruption story in the U.S., and probably the world, concerns efforts by President Trump and his associates, both inside and outside the U.S. government, threaten to withhold U.S. military aid from Ukraine in order to pressure the Ukrainian government into opening investigations that would help Trump politically. It’s clear at this point, except perhaps to the most rabid partisans, that there was indeed a “quid pro quo,” and the discussion has now turned to the question whether, with respect to President Trump specifically, he should be impeached for his conduct related to this episode (the issue that Rick focused on in yesterday’s post), and, with respect to whether Trump, his private lawyer Rudy Giuliani, or anyone else committed any crimes.

On that second question, commentators have suggested a whole range of criminal laws that some or all of the parties involved might have broken, including:

  • The section of the campaign finance laws that prohibits the “solicit[ation” from a foreign national of a “contribution or donation” to an election campaign of any “thing of value”;
  • The federal anti-bribery statute’s prohibition on any federal public official “directly or indirectly, corruptly demand[ing or] seek[ing] … anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act”;
  • The anti-extortion provision of the Hobbs Act, which prohibits “the obtaining of property for another … under color of official right” (as well as the attempt or conspiracy to do so);
  • The wire fraud statute, which prohibits the devising of any “scheme or artifice to defraud” that involves use of any interstate (or international) wire communication (such as a phone call), where the term “scheme or artifice to defraud” is specifically defined elsewhere in the statute as including a scheme “to deprive another of the intangible right of honest services.” (This may seem a bit opaque to readers unfamiliar with this corner of U.S. law, but in a nutshell, so-called “honest services fraud” is a theory that when a public official, or some other person in a position of trust, engages in a corrupt scheme to, say, solicit bribes, that individual defrauds her principals by depriving them of her honest services. For an explanation of how this could apply to Trump in the Ukraine case, see here.)
  • In the case of Mr. Giuliani and other parties who do not work for the U.S. government, the Logan Act, which prohibits private citizens from corresponding with any foreign government or foreign government official “with the intent to influence the measures or conduct of any foreign government …. in relation to any disputes or controversies with the United States.”
  • Various provisions of Ukrainian law.

In addition to all of these possibilities, which strike me as at least facially plausible given the evidence that has come to light so far, some commentators have suggested that President Trump’s associates, such as Mr. Giuliani, may have violated the Foreign Corrupt Practices Act (FCPA) (see here and here). This argument hasn’t gotten much traction, in my view for good reason. Even for someone like me, who generally has a more expansive view of the FCPA than do some other commentators, it’s hard to see how the evidence we have so far would suggest a plausible FCPA violation. There are two main reasons for this: Continue reading →

Tracking Corruption and Conflicts of Interest in the Trump Administration–November 2019 Update

Posted on by
Reply

While ongoing developments in the impeachment inquiry into President Trump’s attempt to pressure Ukraine to open investigations that might damage Trump’s political rivals continue to dominate the headlines, there are plenty of other reasons to be concerned about other serious ethical problems (some might say “corruption”) in the Trump Administration, including a slew of credible allegations that the President, his family members, and close associates have been using the presidency to advance their personal financial interests. Back in May 2017, GAB began tracking and cataloguing credible allegations of this sort of profiteering by President Trump and his family and cronies. Unfortunately, each month brings a new incidents, or new information about old incidents, and so we try to do regular updates of this catalogue, and the newest update is now available here.

A previously noted, while we try to include only those allegations that appear credible, 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.)

Guest Post: Fighting Police Corruption in London, and Beyond

Posted on by
17

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 →

New Podcast Episode, Featuring Shaul Shalvi

Posted on by
Reply

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.

Anticorruption Bibliography–October 2019 Update

Posted on by
Reply

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.

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

Posted on by
8

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 →

New Podcast Episode, Featuring Kevin Davis

Posted on by
Reply

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, I interview Professor Kevin Davis, of the New York University Law School, about his new book, Between Impunity and Imperialism: The Regulation of Transnational Bribery (OUP 2019). As the book’s provocative title suggests, Professor Davis has a mixed assessment of the current legal framework on the regulation of transnational corruption (a framework dominated by rules set by the OECD countries, especially the United States), recognizing the progress that has been made in ending impunity, but at the same time highlighting the costs and limitations of the current system, especially from the perspective of developing countries. In addition to our general discussion of his critique–including the reasons for his use of the term “legal imperialism”–we also discuss a number of more specific legal questions, including individual vs. corporate liability for corruption, the nullification of contracts tainted by bribery, the asset recovery framework, and victim compensation more generally.

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.

If You Don’t Think Trump’s Financial Conflicts of Interest Matter, Consider the Kurds

Posted on by
10

Yesterday I posted a note regarding the update of this blog’s project on tracking the various ways in which President Trump and his family may be attempting to use the presidency for private financial gain, how the associated conflicts of interest might influence or distort U.S. policy. In light of recent events, I thought that perhaps it might be appropriate to highlight, and elaborate upon, a few items on that list that may be cause of particular concern:

  • President Trump has extensive business interests in Turkey, including a Trump Tower in Istanbul. This is not a new observation; the potential conflict of interest that this might create has been extensively documented (see here, here, and here), though in light of recent events these business connections have received renewed and intensified scrutiny (see, for example, here, here, and here). Indeed, then-candidate Trump acknowledged back in December 2015 that, “I have a little conflict of interest [in Turkey], because I have a major, major building in Istanbul.” Indeed, the Trump Towers Istanbul, which the Turkish conglomerate Dogan Holding developed, pays licensing fees to the Trump Organization. The Erdogan government can, and previously has, imposed substantial costs on Dogan Holding, and there are credible reports that the Erdogan Administration believes that this ability to put “pressure on Trump’s business partner [in Turkey]” gives the Turkish government the ability “to essentially blackmail the president.” Let that sink in for a moment.
  • In addition, entities close to the Turkish government have gotten in the habit of spending heavily at Trump properties in the U.S. Most notably, the American Turkish Council and the Turkey-U.S. Business Council have held multiple events at the Trump Hotel in D.C. (see here and here), attended by senior administration officials, with these events estimated to pay the Trump Organization well over $100,000 per event. (It’s also worth noting here that the Turkey-U.S. Business Council is headed by the founder of the consulting company that paid former national security advisor Michael Flynn $530,000 for lobbying work.)

It’s impossible to prove whether any of this directly affected President Trump’s foreign policy decisions regarding Turkish interests. But as Turkish forces continue to bombard the Kurdish forces in Northern Syria—an assault against loyal U.S. allies that was only possible because President Trump acquiesced in President Erdogan’s request/demand that U.S. forces clear out and make the attack possible—it’s hard not to wonder whether crucial U.S. allies in the fight against ISIS have been betrayed by the American Commander-in-Chief so that he can protect his financial interests.

This makes the stakes of the corruption concerns related to this presidency, including those implicated in the Emoluments Clause lawsuits brought against the administration, seem all the more pressing. The strategic and tactical wisdom of those suits, and their legal viability, is a complicated question on which my own views have evolved over time (see here, here, and here). But to characterize the issues raised by those suits as a minor distraction, as former New York Times reporter Linda Greenhouse did back at the start of the Trump presidency, is a hot take that hasn’t aged well. Here’s what Greenhouse had to say in that January 2017 Council on Foreign Relations roundtable discussion:

I think [the Emoluments Clause] lawsuit is a distraction…. I mean, it seems to me, what we need—we, as concerned citizens—need to focus on are the policy outcomes … emanating from this White House and not, you know, who’s paying the rack rate at the Trump hotel. I mean, that just doesn’t do it for me. (Laughter.) Maybe I’m missing something, but, you know, I think we need to focus on what really matters here.

Note to Ms. Greenhouse: Corruption and conflicts of interest at the highest levels of government “really matters.” Such corruption is often deeply connected to policy outcomes. I’m not sure anyone who follows these issues closely, and who cares about things like our national security policy and our treatment of vital and loyal allies, is laughing much about this now.

Tracking Corruption and Conflicts of Interest in the Trump Administration–October 2019 Update

Posted on by
2

The recent and still-unfolding scandal involving President Trump’s apparent pressure on Ukraine to investigate and/or provide dirt on his political rivals has to some degree overshadowed many of the other ethical concerns about President Trump’s behavior in office, including a slew of credible allegations that the President, his family members, and close associates have been using the presidency to advance their personal financial interests. (That said, the Ukraine scandal has also drawn greater attention to at least one aspect of this problem, as it did not go unnoticed that in the now-infamous phone July 25 phone conversation between President Trump and President Zelensky, the latter went out of his way to emphasize how much he enjoyed staying in a Trump hotel in New York, which is consistent with longstanding fears that those hoping to influence Trump will give their patronage to his businesses.)

Back in May 2017, GAB began tracking and cataloguing credible allegations of this sort of profiteering by President Trump and his family and cronies. Until May 2019, we’d been updating that report on a monthly basis. The tracker hadn’t been updated for several months since then, partly due to my own lack of organization, and partly because there are now a number of other higher-profile, better-resourced projects with a similar goal. (Among these, I particularly recommend the those from the Sunlight Foundation and from the Citizens for Responsibility and Ethics in Washington.) But I think GAB’s somewhat distinctive approach to organizing and describing these concerns might still have sufficient added value that we’re restarting our regular updates to the Trump conflict-of-interest tracker. The newest update is now available here.

A previously noted 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.