Category Archives: Commentary

Should International Organizations Like the IMF Require More Anticorruption Conditions on Their Pandemic Emergency Funding?

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In response to the unprecedented COVID-19 pandemic, governments across the world are taking emergency measures to secure and distribute necessary medical equipment to hospitals, front-line medical workers, and at-risk groups. Moreover, to respond to the dangerous economic crisis that has resulted from stay-at-home orders and other essential public health measures, national governments have rapidly adopted new fiscal programs and other measures that have pushed trillions of dollars out the door. Multilateral institutions like the International Monetary Fund (IMF) have also stepped in to assist countries that have seen their foreign exchange inflows drying up due to a variety of factors associated with the pandemic (including lower international oil prices, lack of tourism receipts, and declining remittance flows). These countries urgently need for foreign exchange to purchase critical medical supplies and equipment from abroad. The IMF has existing facilities for providing emergency funding to address balance of payments shortfalls in times of emergency (the Rapid Credit Facility (RCF) and the Rapid Financing Instrument (RFI)), and has  already begun providing funding under these programs, with more funds likely on the way. In contrast to other IMF programs, there are relatively few conditions that recipients need to satisfy up front in order to have access to RCF/RFI financing.

The global anticorruption community has been understandably worried about the risks that emergency response funds could be misappropriated or mismanaged, which would impede the collective public health efforts. (See, for example, the pieces collected here and here). For example, Transparency International has pushed for open data publishing on public procurement, and Sarah Steingrüber, the Global Health Lead for CurbingCorruption, recently made the case on GAB for the establishment of oversight task forces and for directing some donor funds to enhancing anticorruption safeguards (i.e. public financial management improvements and CSO funding). With respect to the IMF in particular, a group of 99 civil society organizations (CSOs) sent an open letter to the IMF, pushing back against what they characterized as the Fund’s “retroactive approach” to anticorruption efforts, and instead called for loan conditions that would require recipient governments to (1) receive all IMF funds in a single Treasury account, (2) hire independent auditors within six months of disbursement, (3) publish a procurement plan with names and beneficial ownership information, and (4) repeal or amend laws that prevent groups from safely monitoring government spending.

While nobody seriously questions the importance of reducing corruption and other forms of “leakage” of funds spent to fight the coronavirus and its associated economic dislocation, much of the emerging commentary from the anticorruption community seems to lack a sufficient appreciation of, and engagement with, the trade-offs between controlling leakage and ensuring a sufficiently rapid response. The CSOs’ open letter to the IMF is an illustrative example of the apparent neglect of these trade-offs. Continue reading →

The Bribery Trial of Sitting Israeli Prime Minister Netanyahu Poses Unprecedented Challenges

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The criminal trial of Israeli Prime Minister Netanyahu, on multiple corruption charges, opened yesterday, only ten days after the formation of a new government, and after years of police investigations, indictment procedures, and three rounds of early general elections. The trial is an unprecedented event in Israel, and one of the few examples anywhere in the world where a sitting head of government has stood trial on criminal charges in his own country. This situation poses unique challenges. On the one hand, the court must ensure that Netanyahu’s rights, as a criminal defendant, are respected. That said, though, some adjustments will have to be made to secure both the fairness of the trial and the integrity of Israeli executive and judicial branches, given that as the trial unfolds, Netanyahu will continue to serve as Prime Minister.

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Adapting Anticorruption Enforcement to an Age of Populism and Polarization

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Shortly after the U.S. Senate acquitted President Clinton in 1999, he apologized for triggering the impeachment process. President Trump, in contrast, declared that his acquittal called for “a day of celebration,” and immediately started firing White House employees who had testified before the House of Representatives. In 2008, then-Israeli Prime Minister Olmert resigned shortly after the police recommended that he should be indicted on corruption charges. In contrast, after Prime Minister Netanyahu was indicted on multiple bribery charges, he infamously said that Israeli citizens should “investigate the investigators,” and even with the trial approaching, Netanyahu shows no signs of considering resignation. Instead, he is currently fiercely promoting legislation to amend several of the Israeli Constitutional Basic Laws in ways that will allow him to remain in office for years to come. These troubling examples illustrate how the resurgence of populism, coupled with increasing polarization, are making it easier for corrupt politicians to evade accountability, even in countries with functional legal and judicial systems. Deep political divisions and strong partisan loyalty are not new, but in the past, it seems there was a degree of overlapping consensus on minimum standards of integrity and propriety, and enough citizens were willing to enforce these standards on a non-partisan basis that leaders would be restrained by political checks—enforced through things like elections and internal party discipline—that could complement judicial processes.

Moreover, leaders like Trump and Netanyahu have acted aggressively to undermine the institutions of justice in order to protect themselves. Both leaders have cavalierly attacked the professionalism and integrity of their country’s law enforcement agencies by suggesting that investigations targeting the leader or his associates are politically motivated “witch hunts.” And both have taken more concrete action to undermine the ordinary operation of the machinery of justice. In the U.S., after his Senate trial acquittal, President Trump intervened to help allies who had been found guilty in cases related to investigations of impropriety by Trump’s 2016 campaign. For example, Trump’s Attorney General ordered the Department of Justice to seek a more lenient sentence for Trump’s former consultant Roger Stone, and Trump pardoned or commuted the sentences of several others in a short and unorthodox process. Netanyahu has been even more aggressive in trying to weaken legal institutions in order to protect himself. After being indicted, Netanyahu fired the Minister of Justice and appointed in her place a low-ranking member of his party with no prior ministerial experience. The new Minister’s first action was to appoint a new Solicitor General—the immediate superior of the prosecution team in Netanyahu’s case–through an irregular process and against the recommendation of the non-partisan Attorney General. (Due to the political deadlock, the Minister is part of a caretaker government and could therefore appoint an interim Solicitor General without the approval of the public committee that the law would otherwise require.) On the eve of Israel’s third round of elections, the new Solicitor General decided—against the opinion of the Attorney General and many others—to launch a police investigation into a firm in which Netanyahu’s chief rival Benny Gantz served as a director (obscuring the fact that Gantz himself is not a suspect). More recently, the Minister of Justice gave the unprecedented order to freeze all non-urgent judicial procedures due to the Covid-19 outbreak—a move that indefinitely postpones Netanyahu’s trial. While the Covid-19 outbreak has disrupted or delayed judicial proceedings in many countries, there was no expert opinion supporting such drastic measures in Israel, especially given that Israel has more per capita testing and ventilators capacity than nearly any country on earth. Even now, when newly detected cases are close to zero, a new date for the trial has yet to be set. Moreover, to avoid a fourth round of elections, given the continued deadlock, Netanyahu is now fiercely and unprecedently promoting legislative amendments to Israel’s Constitutional Basic Laws that would allow him to hold onto office for years to come.

When professional, and traditionally non-partisan, law enforcement agencies find themselves under attack by corrupt populists, these agencies often do not respond, presumably due to the belief that the only way to maintain integrity, legitimacy, and professionalism in the face of such attacks is to refrain from commenting on unfounded claims meant to disparage state attorneys and police investigators. There is much to be said for that approach, but at the same time, the institutions of justice can and should do more to counter the attempts of corrupt populists to undermine those institutions in order to remain in power.

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Where the Real Blame for Letting Bridgegate Defendants Off Lies: Part I

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The Supreme Court continues to bear the blame for two political operatives getting off scot free for an admitted blatant abuse of power: creating nightmarish traffic jams for residents of a small New Jersey town because its mayor had not endorsed their boss’ reelection as governor.  Though the record showed the stunt endangered the lives of some and inconvenienced thousands and their lawyer admitted it was an abuse their power as state officials to cause the jams, the Court acquitted them on all charges.  Its decision in the Bridgegate case, so named because the traffic jams were created by blocking two lanes of the bridge the residents used to commute to New York City, is indeed the immediate reason defendants escaped sanction.

But that ruling was the inevitable consequence of earlier decisions by the other branches of government.  For decades Congress has ignored the Court’s warning that the hodgepodge of federal laws used to prosecute state and local officials for corruption is Constitutionally infirm.  And for decades, and despite some spectacular earlier reversals by the Court, the Executive branch has continued to rely on these statutes to prosecute state and local corruption.

Those genuinely interested in fighting corruption need to stop denouncing the Court and focus their energies instead on these two branches of government.  Below is what they should demand of the Executive.  Part II of this post will explain what they should demand of Congress. Continue reading →

Corruption 2020: How The U.S. Supreme Court Might Leave Presidential Elections Vulnerable to Corruption

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The United States uses an indirect voting process called the Electoral College to elect the president. In this system, which is mandated by the Constitution, each state is assigned a number of “electors” based on the number of representatives the state has in both Houses of Congress; the voters in each state do not actually vote directly for a presidential candidate, but rather for a slate of electors, appointed by the state, who have pledged to vote for that candidate when the Electoral College convenes to select the president. (This odd system is why there have been instances, including in the most recent U.S. presidential election in 2016, when the winner of the popular vote does not become the president.) But suppose an elector who has pledged to support one candidate decides to switch her vote? This is not purely hypothetical: Throughout American history, 157 electors have defected from their pledge. Some states seek to prevent this through laws under which such “faithless electors” can be subject to civil penalties, including replacement. Electors from the 2016 Presidential Election have brought a case in the Supreme Court challenging these “faithless elector” laws as unconstitutional.

This challenge is obviously important for U.S. presidential elections—but (many readers might be wondering) what does it have to do with corruption? It turns out that, as U.S. anticorruption advocates have emphasized, if the Supreme Court rules that states cannot compel electors to vote as they have pledged, this could leave U.S presidential elections vulnerable to corruption. If electors cannot be legally required to vote for the candidate who won the popular vote in their state, then electors can be bribed—or, if not outright bribed, then subject to other forms of improper influence.

Part of the problem is that U.S. campaign finance laws and government ethics rules, as currently written, do not cover electors. Likewise, U.S. anti-bribery laws prohibit bribes to public officials and candidates for public office, but electors don’t clearly fall into either of those categories. The most relevant federal criminal statute is likely the prohibition on vote-buying and vote-selling in elections, codified at 18 U.S.C. §597. That section prohibits “mak[ing] or offer[ing] to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate.” But this statute has been construed narrowly to only apply to instances of a quid pro quo, which leaves the door open for private interests to corruptly influence electors so long as they avoid any explicit bargain. Moreover—and even more troubling—the U.S. President has virtually unlimited pardon powers, so if a candidate’s surrogates bribed enough electors to win the presidency, in blatant violation of §597, the President could simply pardon both the agents who paid the bribes and the electors who took them. These two problems—the difficulty of proving a quid pro quo and the President’s pardon power—also explain why the problem couldn’t be fixed by expanding the scope of other federal campaign finance, government ethics, and anti-bribery rules to cover electors as well as public officials and political candidates.

So, should the Supreme Court decide that electors cannot be penalized by the states for defecting from their pledged votes, the U.S. presidential election might be up for sale. And, for the reasons sketched above, this problem couldn’t be easily fixed simply by expanding existing federal anticorruption laws to apply to electors.

Should the Supreme Court side with the “faithless electors,” what could be done to protect the integrity of U.S. presidential elections (short of abolishing or significantly reforming the electoral college—steps that would require a constitutional amendment and so are not likely any time soon)? There are three possibilities: Continue reading →

Law Profs: Stop the Overheated Rhetoric About Bridgegate

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As Matthew explained yesterday, last Thursday the Supreme Court ruled that a political dirty trick, generating a traffic jam for a town’s residents after their mayor refused to support the reelection of the state’s governor, while an abuse of power, does not constitute fraud under federal criminal law. The Court’s unanimous decision in “Bridgegate,” so named because the traffic jam was created by closing two of the three lanes residents use to drive across the George Washington Bridge, was authored by former Harvard Law School Dean and Obama Solicitor General Justice Elena Kagan.  That the decision was unanimous and written by a member of the Court’s liberal wing are two of several clues in the Court’s opinion showing it is no part of a Trump-inspired plot to legalize public corruption. Washington Post readers, however, could be forgiven for thinking otherwise. For Michigan Law School Professor Leah Litman wrote in the paper’s March 10 edition that the Court’s decision is the latest in “a string of failed corruption cases” that has made it “almost impossible to put a crooked politician in jail.”

This is plain nonsense. Continue reading →

The U.S. Supreme Court’s Opinion in the “Bridgegate” Case: Some Quick Reactions

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While I’m still finding it a bit difficult to think or write about anything other than the coronavirus pandemic, there have nevertheless been some other newsworthy corruption-related developments in recent weeks. One of them—perhaps, I admit, or more interest to our U.S. readers than to others—was the U.S. Supreme Court’s decision last week in United States v. Kelly, which overturned the federal criminal convictions of two close associates of former New Jersey Governor Chris Christie for their role in a scandal known as “Bridgegate.” Back in 2013, when then-Governor Christie (a Republican) was seeking re-election, he sought to bolster his candidacy by securing the endorsements of several Democratic mayors of New Jersey cities. When the mayor of the city of Fort Lee declined to endorse Governor Christie, several of Christie’s allies who worked for the Port Authority of New York and New Jersey (the entity that regulates transportation in the busy New York-New Jersey region) retaliated against the mayor by deliberately closing lanes on the busy George Washington Bridge, creating major traffic jams in Fort Lee for several days. They justified the closures with a “traffic study,” but this, the evidence adduced at trial clearly showed, was an utterly dishonest pretext for an act of political retribution. Nobody seriously contests that what these Port Authority officials (who were fired after the scandal was exposed) did was a corrupt abuse of power. But was it also a federal crime? U.S. federal prosecutors argued that it was, and convinced a jury to convict, but the Supreme Court unanimously disagreed and reversed the conviction.

There’s already been quite a bit of commentary on the Kelly decision. A number of critics argue that Kelly, together with several previous Supreme Court decisions, “opens the door to a distressing form of government corruption,” and has made federal prosecution of corruption “nearly impossible.” Other commentators asserted that not only did the Court reach the correct legal conclusion, but in fact the law properly does not criminalize the conduct of the officials in this case—because doing so, according to these commentators, would have sweeping and undesirable consequences, criminalizing a wide swath of garden-variety political conduct (such as using government power to benefit supporters and/or lying about the true motivations behind regulatory actions).

I should confess right now that I haven’t followed the legal arguments in this case very closely, nor am I an expert in the specific statutes at issue. With that important caveat, my own assessment is somewhere in the middle:

  • I think that, given the wording of the relevant statutes and prior Supreme Court precedent, the Court’s decision in Kelly is probably correct, and certainly defensible.
  • I don’t think the decision breaks that much new ground or makes it substantially harder for federal prosecutors to go after other forms of corruption, such as “garden variety” bribery or embezzlement.
  • That said, the decision does highlight an important gap in the coverage of existing federal anticorruption laws, and I tend to think that the sort of behavior at issue in this case—behavior that, in the Supreme Court’s words, amounted to “corruption [and] abuse of power”—can and should be criminalized (under federal as well as state law). Such criminalization, if accomplished through a sufficiently well-tailored statute, would not criminalize “ordinary politics,” at least not the sort of ordinary politics we ought to tolerate.

Let me elaborate a bit on each of these points: Continue reading →

Dissolving Congress to Combat Corruption: Why a Short-Term Anticorruption Victory in Peru Isn’t Worth the Long-Term Cost

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The “Car Wash” corruption scandal that started in Brazil has extended into surrounding Latin American countries, including Peru. All of Peru’s living presidents have been implicated in the scandal, with two currently awaiting trial on corruption charges, one in California fighting extradition, and one who ended his own life just as police entered his home to arrest him. The corruption scandal has also implicated members of Congress, including the head of Peru’s largest opposition party, Keiko Fujimori (daughter of the infamous former president Alberto Fujimori). To make matters worse, investigators have also uncovered an unrelated bribes-for-verdicts corruption scandal in the judiciary.

Peru’s current president, former Vice President Martin Vizcarra, assumed the presidency after his predecessor resigned over corruption allegations. Backed by overwhelming popular support in a national anticorruption referendum, President Vizcarra spent most of 2019 pushing an ambitious anticorruption agenda. His proposed reforms included a new law that bars members of Congress from seeking immediate reelection after one five-year term, transferring the power to lift a Member of Congress’s legislative immunity from Congress to the Supreme Court, and changing the system for appointing judges and prosecutors. On all of these proposals, Congress (controlled by an opposition party) has dragged its feet, likely for self-serving reasons. While Congress eventually passed some of these reforms, including the ban on re-election, the judicial anticorruption bill stalled. After several attempts to pass the bill, on September 30, 2019, Vizcarra took the drastic step of dissolving Congress—a move supported by 84% of Peruvians. Vizcarra issued a decree for a snap legislative election, which took place on January 26, 2020, and in which Peruvians elected a new Congress to finish the current constitutional term ending in 2021. Given the ongoing pandemic, this new Congress has, understandably, yet to fully address Vizcarra’s remaining anticorruption agenda.

It is often said that fighting entrenched corruption involves disrupting the political status quo. President Vizcarra’s decision to dissolve Congress was certainly disruptive—but not in a way that anticorruption advocates should celebrate. Whatever its short-term payoffs, this decision threatens to undermine Peru’s institutional checks and balances, leaving the country more vulnerable to corrupt actors in the long term.

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Heightened Transparency of Stock Trading by Public Officials Could Help Convey Reliable Information in Crises that the Public Deserves to Know

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On February 7, 2020, there were 34,876 confirmed cases of Covid-19 worldwide, but none in the United States. On that day, Fox News published a reassuring opinion piece co-authored by Republican Senator Richard Burr, arguing that the US is prepared to face any outbreak. Around February 13, a couple of days before the first confirmed cases in the US were discovered and before the stock markets began to plunge, Burr sold hundreds of thousands of dollars’ worth of stocks, many of which were in the hotel industry. Senator Burr’s stock sale was not public at the time; the sales were first reported by ProPublica only a month later.

We do not yet know whether Senator Burr’s decision to dump his stocks was based on confidential government information to which he had special access. On the one hand, new information on the Covid-19 pandemic was coming out every day, and perhaps Senator Burr was simply one of many investors who changed their minds regarding the outbreak and were lucky to exit the market in time. On the other hand, Senator Burr is the Chair of the Senate Intelligence Committee, which was receiving regular briefings on the coronavirus situation, so the suspicions towards him are understandable. (It also didn’t help matters that a few weeks after the publication of his op-ed Senator Burr told wealthy donors in a closed-door meeting that the Covid-19 outbreak “is probably more akin to the 1918 pandemic,” but never revised his previous public reassurances.) Whether justifiably or not, Senator Burr was harshly criticized (including on this blog), with many calling for his resignation, and he has been sued for insider trading by a shareholder of one of the companies whose stocks he dumped. In addition to the criticism leveled at Senator Burr, several commentaries, including Cristina’s post on this blog, have argued that this incident demonstrates the need to amend the 2012 STOCK Act to impose stricter limitations on the freedom of senior US government officials, including Members of Congress, to trade in stocks.

My perspective is somewhat different. While I acknowledge the legitimate concerns that motivated calls to strengthen prohibitions on stock trading by government officials, in my view regulation should be more focused on ensuring the transparency of those trades, rather than on further limiting or blocking stock trading.

Continue reading →

Is the Vatican Finally Getting Serious About Cleaning Up Its Finances? The Appointment of an Antimafia Magistrate Is A Promising Sign

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Questions about Vatican finances have dogged the Church for decades. In 2012, leaked documents revealed allegations of extensive cronyism and money laundering; these documents suggested, for example, that the Church’s main charitable mission, Peter’s Pence, was being used to fund the lavish lifestyle of some members of the clergy. Though Pope Benedict XVI had attempted to institute financial auditing procedures, his efforts proved insufficient, and the scandal was widely seen as part of the reason for his controversial decision to resign the papacy. Unfortunately, the scandals have continued under Pope Francis. In 2015, the Church purchased a bankrupt Italian hospital in part with money borrowed illicitly from a publicly funded Italian hospital; the transaction, arranged off-the-books, was partly coordinated by a Swiss bank with a reputation for money laundering. In 2019, it was revealed that the Vatican had invested roughly $200 million, at least in part from Peter’s Pence, in luxury real estate in London. The purchase was partially financed through a since-discredited Swiss bank, and the loans were not properly recorded in the Vatican’s internal records. It was also revealed that the Vatican was investing millions of dollars through the Centurion Global Fund, which is connected to the same Swiss bank that ran the London purchase, as well as to a pair of banks that have been linked to a Venezuelan bribery and money-laundering scandal. While it is possible that some or all of these transactions may prove to have been the product of poor financial decision-making rather than corruption, these and other incidents have called into question the Church’s management of its finances as well as the integrity of its internal watchdog mechanisms

Pope Francis, who ascended to the papacy with promises of reform, has publicly acknowledged that there is corruption within Vatican finances and has pursued measures to restore confidence in the Church’s financial management. However, many of his attempts to institute more rigorous reforms have been frustrated by internal Vatican power struggles. For instance, in 2016 the powerful Archbishop Giovanni Becciu unilaterally stopped a scheduled audit of Vatican finances, and in 2017 the Vatican’s auditor-general was forced out of office, allegedly after finding evidence of financial irregularities. But in late 2019, Pope Francis stepped up his efforts to crack down on malfeasance and get the Vatican’s financial house in order. Francis took a particularly high-profile step in October 2019, when he appointed one of Italy’s leading antimafia magistrates, Giuseppe Pignatone (who retired from the Italian judiciary in May 2019), as head of the Vatican’s criminal tribunal, which is tasked with investigating corruption and fraud, among other crimes. Although some have portrayed Pignatone’s appointment as a sign of desperation by a Pope who cannot control his own bureaucracy, this choice was in fact a wise move by Francis to consolidate his reformist agenda. Pignatone’s former position as one of Italy’s most prestigious antimafia magistrates means that he is particularly well-placed to address Vatican corruption, for three reasons. Continue reading →