Category Archives: Commentary

Donald Trump: Ethics Champion?

Posted on by
5

Seeing the President-elect as a champion of ethics would be one way to interpret the comedic events of the past 36 hours in the upside-down world of what was once termed the capital of the free world.  The comedy opened Monday evening, January 2, with Republican members of the incoming House of Representatives voting (in secret and without prior notice) to curb the Office of Congressional Ethics, the independent body which hears allegations of ethical transgressions by House members and staff.  The vote met with immediate and sustained outrage by citizens, media commentators, and government reform groups.  Criticism was also voiced from a source many found unlikely.  In a pair of messages (here and here) Tuesday morning President-elect Trump tweeted that:

“With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it may be, their number one act and priority. Focus on tax reform, healthcare and so many other things of far greater importance! #DTS”

Within hours of the Trump tweets, the comedy ended.  Chastened, on-the-defensive, with even their allies questioning their political competence, House Republicans reversed course and left the congressional ethics office’s powers intact.      Continue reading →

For Foreign Aid and Fighting Corruption, Less Is More

Posted on by
3

The US government learned many hard lessons from its military occupation of Iraq. With respect to corruption in security and reconstruction projects, one of the clearest lessons—emphasized by the 2013 final report from the Special Inspector General for Iraq Reconstruction (SIGIR), among others—was that smaller, short-term projects were more effective, and less susceptible to massive and debilitating corruption, than big, long-term projects. Indeed, a month after publication of the SIGIR report, Paul Cooksey, the Deputy Special Inspector General for Iraq Reconstruction, testified to Congress that large amounts of money should not be injected into an unstable region without enough well-trained, experienced personnel to oversee it. The better strategy, he argued, was to use small projects that could be more tightly managed. For example, one battalion commander in Iraq mentioned that greenhouse and drip irrigation projects—which allowed farmers to use water more efficiently and grow vegetables year-round—were small enough to be easily monitored to completion. This may not be as grandiose as building massive infrastructure, but it can still have a meaningful impact on people’s lives.

Yet despite the clarity and consistency of this message, it has not been heeded in Afghanistan. Continue reading →

Will the Trump Administration Realize that Fighting Extremism Requires Fighting Corruption?

Posted on by
4

That corruption breeds extremism is one of the abiding lessons of the last decade plus.  Whether it is Nigeria, Egypt, Somalia, Tunisia, Iraq, Afghanistan or Uzbekistan, allowing what a recent Carnegie Endowment report terms “acute, systemic” corruption to fester is the equivalent of putting out a welcome mat for extremists, home-grown and foreign. Eleven days after President Trump takes office, the world will see whether his national security team has absorbed this lesson.

January 31, 2017, is the day the Trump Administration must tell an American judge whether it will continue negotiations with the Government of Uzbekistan over the return $850 million in bribes paid in violation of the Foreign Corrupt Practices Act the Department of Justice has frozen.  Following a Bush Administration policy continued by the Obama Administration, the U.S. government position has been that such funds should go back the country of origin only if:

  1. the government take steps to curb grand corruption and
  2. the monies are used to improve the lives of ordinary citizens.

Candidate Trump called the FCPA a “horrible” law. On the 31st the world will see what that means in practice.  He could, as I explain here an article for the U.S. newspaper The Hill, tell the judge he has decided to turn the money over to the Uzbek government without strings.  That result would certainly show how horrible he thinks the FCPA is.  It would also ease the task the Islamic Movement of Uzbekistan, the Islamic Jihad Union, and the other radical groups in Central Asia have set of overthrowing the endemically corrupt Uzbek government.

Will the Trump Administration realize that fighting extremism requires fighting corruption? Visit this blog February 1 for at least the first answer to the question.

Leniency Agreements Under Brazil’s Clean Company Act: Are They a Good Idea?

Posted on by
2

Brazil’s 2013 Clean Company Act, the country’s first anti-bribery statute applicable to companies, has grabbed Brazilians’ attention due to its recurrent use in the context of the so-called Car Wash operation. The Clean Company Act has provided the main legal basis for Brazilian public authorities (especially federal prosecutors) to sign leniency agreements with construction corporations whose top executives stand accused of bribing officials in exchange for contracts from Petrobras, Brazil’s state-owned oil giant. Under the Act, Brazilian authorities may enter into a leniency agreement as long as the company admits its participation in the illicit act, ceases any further participation, provides full restitution for damage caused, and cooperates fully and permanently with the ongoing investigation. In exchange, the fines can be reduced by up to two-thirds and, more importantly, the cooperating company may be exempted from judicial and administrative sanctions, including suspension or debarment from public contracts. Over the course of the Car Wash investigation, Brazilian authorities have already signed five leniency agreements with some of Brazil’s largest engineering firms, and at least twelve more companies are currently negotiating leniency deals with Brazilian authorities.

But do these sorts of leniency agreements provide for sufficient deterrence of corrupt behavior? And are they consistent with the interest in punishing those companies that have committed a serious crime? Those who defend Brazil’s increasing use of leniency agreements emphasize that a similar approach has proven to be effective in countries like the United States, one of the most successful countries in the world in the fight against corruption. Indeed, the leniency agreements authorized by the Clean Company Act were modeled on the Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs) used by US authorities in white-collar criminal law enforcement. However, Brazil is following the US model precisely at a time when the widespread use of NPAs and DPAs is becoming more controversial, in part because of concerns that these sorts of agreements fail to deter economic crimes and allow high-ranking executives to escape accountability for their crimes (for a summary of the criticisms of those agreements, see here and here). Perhaps more importantly, even if one views the US experience with NPAs and DPAs as successful overall, there are several reasons why this model might be more problematic in the Brazilian context. Continue reading →

Equitable Sharing, Not Deference: How US FCPA Enforcers Should Accommodate Foreign Interests

Posted on by
Reply

Frederick Davis recently published two guest posts (see here and here) emphasizing some of the risks that arise when the US government pursues FCPA prosecutions against foreign corporations. He notes that European anticorruption administrators are regularly irritated by aggressive US action in this field and by the apparent discrepancy in the treatment of US and non-US corporations. He also notes that foreign corporations are reasonably worried about being charged twice for the same transgression: While European countries have addressed this concern through an international version of the double jeopardy bar (also known as ne bis in idem), that bar does not protect a corporation against a subsequent US prosecution. Moreover, as Mr. Davis notes, US enforcement agencies (as compared to their counterparts in Europe) have wider authority to charge, are more willing to assert power abroad, wield more procedural tools, and are less subject to judicial supervision in their charging and settlement decisions. To address these problems, Mr. Davis recommends, among other measures, that the US DOJ issue guidelines for when to defer to foreign judgments.

However, US deference to foreign judgments may not be the best solution. It could be true, as Mr. Davis worries, that US prosecutors are “becoming the ultimate arbiters” of foreign bribery cases (at least those involving multinational corporations). But if the US standard is indeed more stringent, then US hegemony could lead to more aggressive anticorruption prosecution across the board, a boon for anticorruption advocates. Since in certain situations competition among administrative and enforcement agencies can create a de facto “race to the top” in terms of standards, it might not be such a good idea for the US to adopt a more deferential posture toward foreign judgments in transnational bribery cases.

That’s not to ignore the significant problems that Mr. Davis describes. Given that the fines and other monetary penalties for corrupt business behavior can be enormous, US FCPA counterparts in other nations would be rightly dismayed if they lost out on the potential recoveries. If a Danish corporation listed on a US exchange bribes an official in Gambia, all three countries should be able to penalize the wrongdoers and share—though not necessarily equally—in the fines and other penalties recovered. If the penalties are appropriately distributed, we need not sacrifice the aggressive anticorruption regime of US hegemony. My response to Mr. Davis is that we need guidelines for distribution of recoveries, not necessarily guidelines for deferral to foreign judgments operating under differing, and less aggressive, standards.

Continue reading →

Are Better Principals the Answer to the Corruption Problem?

Posted on by
3

Those in the business of giving policy advice know the surest way to guarantee a policymaker ignores their counsel is to say the problem is “complicated” or “there are no easy solutions” and that the best way to see the advice is accepted is to cast it in the form of a simple, straightforward solution that fits easily onto a single power point slide. World Bank economists have learned this lesson well as their recent report on how developing countries can cure corruption and related governance ills demonstrates.  Making Politics Work for Development: Harnessing Transparency and Citizen Engagement manages to state the solution to the corruption problem in one sentence: Give citizens more information about politicians so they will know which ones to vote out and which ones to keep at the next election.

The authors are able boil the complex problems of corruption and bad governance down into such a neat solution thanks to application of principal-agent theory.  But in avoiding the “it’s complicated”/“no easy solution” Scylla have they veered into the Charybdis of oversimplification?

Continue reading →

Why Did Trump’s Anticorruption Rhetoric Resonate? Three Hypotheses

Posted on by
3

OK, I know I said in last week’s post that I would eventually get back to blogging about topics other than Trump, but not yet. After all, Trump’s election—a political and moral crisis on so many dimensions—poses distinctive challenges for the anticorruption community, in at least two different (though related) respects. The first concerns the consequences of a Trump Administration for US anticorruption efforts, both at home and abroad, a topic I’ve already blogged about (see here and here). The second issue concerns the role that anticorruption sentiments and rhetoric played in Trump’s victory. After all, Trump positioned himself (ironically, outrageously) as an anticorruption candidate, denouncing Secretary Clinton as “crooked Hillary” and pledging to “drain the swamp” of Washington corruption.

It’s no surprise that the mainstream anticorruption community are perturbed, to put it mildly, by the effective deployment of anticorruption rhetoric by a racist xenophobic ultra-nationalist bully. While this is hardly a new phenomenon—see, for example, Katie King’s post on Hungary last year—the Trump victory has forced the anticorruption community to confront it head on. Indeed, at the International Anti-Corruption Conference (IACC) in Panama a couple of weeks back, the appropriation of anticorruption rhetoric by right-wing populists—especially though not exclusively Trump—was a constant subject of hallway conversation, even if relatively little of the IACC’s formal program dealt directly with this issue. (In fairness, many of the IACC speakers did find a way to raise some of these concerns in their presentations, and the organizers also managed to add a last-minute session, in which I was able to participate, discussing this topic.) What are we to make of this? What lessons should the anticorruption community—as well as others aghast at the success of Trump and other right-wing demagogues—take away from Trump’s successful appropriation of anticorruption rhetoric?

I wish I knew the answer to that question. I don’t, and won’t pretend to. But I do think it would be helpful to lay out what I view as the three main competing hypotheses: Continue reading →

Corruption’s Gendered Double Standard

Posted on by
7

On November 8, 2016 the United States almost elected Hillary Clinton as its first female president. But, if Donald Trump and many of his supporters were to be believed, Secretary Clinton was also one of the most corrupt politicians of all time. This argument appears to have swayed many American voters, who ended up electing Donald Trump (who might actually be the most corrupt person recently elected to the presidency, see here, here, and here). That Trump’s unprecedented accusations of corruption were leveled against the first female presidential candidate nominated by a major political party was not a coincidence.

A great deal of commentary has considered whether women (and especially female politicians and public officials) behave less corruptly than men. (For some prior discussion on this blog, see here.) But I’d like to focus on a different question: Are female politicians accused of corruption treated differently—and judged more harshly—than male politicians? Existing research suggests that they are, which in turn may explain both why allegations of corruption can be more damaging to female politicians, and why female public officials are on the whole less corrupt. Continue reading →

How Prisons Corrupt – And What To Do About It

Posted on by
1

In May 2014, Kelvin Melton orchestrated a kidnapping scheme. The perpetrators assaulted the victim with a stun gun, took him from his home, and sent texts to his family demanding ransom. Throughout this time, Melton continued to give instructions to the kidnappers via cell phone. Fortunately, law enforcement was able to thwart the plot and recuse the victim. These facts alone make for a gripping crime. But the story had an extra twist: Melton, the mastermind behind the kidnapping, was in a prison cell the entire time, serving a life sentence for assault with a deadly weapon with intent to kill; the target of the kidnapping scheme was the father of the prosecutor who put Melton behind bars. Melton was able to orchestrate the crime while behind bars because he had been able to obtain a contraband cell phone from a guard.

While the facts of this case are sensational, the phenomenon of inmates corrupting prison guards in order to obtain contraband is far from unusual. In the wake of Melton’s crime, the FBI launched a new program—Operation Ghost Guard—to root out corruption by correctional officers. The first major case out of the program came in 2016, when the FBI indicted nearly 50 former and current correctional officers for accepting bribes from inmates in exchange for contraband. Over the course of a two-year undercover investigation, federal officials learned how inmates and guards in Georgia formed their own crime syndicate. Guards would bring in liquor, tobacco, and cell phones in exchange for thousands in bribe money. Inmates, in turn, would use the cell phones to commit wire fraud, money laundering, and identity theft. Outside of the prison, guards were using their badges to facilitate drug deals. The United States Attorney for the Northern District of Georgia called the levels of corruption “staggering.” And Georgia is not alone; New York state prison officials are currently under investigation by the FBI as well.

The issue of prison corruption is not unique to the U.S. Prior posts on this blog have explored how Brazilian inmates were able to bribe guards in order to facilitate large-scale drug and weapons trading within the complex, and how incarcerated drug lords in the Philippines bought off guards in order to live in comparative luxury behind bars. In the United Kingdom, the widespread practice of bribes in exchange for drugs or cell phones led the penal system to be called “institutionally corrupt” by a report issued by the country’s own Metropolitan police. How do these acts of corruption come about in the first place? And what can we do about them? In her earlier post on prison corruption in the Philippines, Bea Paterno focused on the need for better monitoring and oversight. That’s surely part of the solution, but we also need to pay attention to other aspects of the prison environment, including the guards’ working conditions and the ways in which they interact with inmates. Continue reading →

The Lawyers’ Role in Perpetuating Corruption in Nigeria

Posted on by
4

Nuhu Ribadu, the former head of Nigeria’s Economic and Financial Crimes Commission, spoke to lawyers in Abuja on December 1 on his experience fighting corruption in Nigeria and the role the bar played.

Ribadu came to international attention in the mid-2000s for his audacious efforts to combat the high level corruption then rampant in the country, a fight that led to attempts on his life and ultimately his illegal removal from office despite protests from Nigerian civil society and the international community.  Although Ribadu remains active in Nigerian public life, chairing a high level commission on corruption in the Nigerian oil industry and running twice (unsuccessfully) for public office, he has been relatively silent on the obstacles he faced as head of the EFCC.  In his December 1 speech, unfortunately at this writing still not available online, he explains how some of Nigeria’s most prestigious lawyers, known as SANs or Senior Advocate Nigeria, collaborate with some of Nigeria’s most corrupt actors to frustrate the country’s effort to eradicate corruption at the highest levels of government.

For the benefit of his friends in the international community (of which this writer is one) as well as for a useful insight on one of the challenges of tackling grand corruption, below are excerpts from that speech as reported in the Nigerian press. Continue reading →