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

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Since May 2017, GAB has been tracking 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, and providing monthly updates on media reports of such issues. The December 2018 update is now available here.

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.

Getting State Anticorruption Commissions to Work

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In the elections last November 6, citizens in New Mexico and North Dakota voted to amend their state constitutions to establish state anticorruption commissions. In doing so, they joined the vast majority of American states (currently 44 out of 50) that have created similar (or at least similarly-named) commissions—starting with Hawaii back in 1968. The impulse to create a special commission to deal with a significant problem like public corruption is certainly understandable. Indeed, many state commissions were created immediately after a major public corruption scandal, when public frustration was running high. At the same time, though, the record of such state-level anticorruption commissions in the US is mixed at best (see, for example, here, here, and here). And despite the similarities in their names, many of these commissions actually do quite different things—with some functioning like ethics commissions that publish quasi-legislative standards and others functioning more like mini-prosecutors’ offices. Indeed, it’s not entirely clear that voters in New Mexico or North Dakota knew exactly what they were voting for when they went to the ballot boxes. In New Mexico, the referendum measure left to it to the state legislature to determine how the commission would operate, while the language in the North Dakota referendum suggested that the commission’s duties would be largely optional.

Despite their diversity and admittedly mixed track record, state anticorruption commissions have many potential benefits. They can provide clear reporting channels for individuals who have witnessed corruption; they can evaluate systemic corruption risks by sector and recommend more targeted reforms to state legislators; and they can enhance accountability by investigating ethics complaints and corruption allegations, and referring appropriate cases to state prosecutors’ offices. But in order to be effective, state commissions need to have certain institutional features and safeguards.

Continue reading →

An Interesting Collection of Corruption Posts at the Public Administration Review’s Blog Symposium–Worth a Look!

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The Public Administration Review recently published a blog symposium on corruption, edited by Liz David-Barrett and Paul Heywood. (As some readers might recall, GAB published the announcement and call for submissions last April.) The broad-ranging symposium includes an impressive lineup of contributors and a diverse set of topics–and in keeping with blogging norms, the pieces are short and to the point, and often provocative. Worth checking out. You can find the full table of contents at the link in the first line of this post, but I’ll also copy it below so readers can jump directly to posts that look particularly interesting:

Corruption: A Bully Pulpit Symposium

Introduction

  1. Why re-think anti-corruption? An introduction to the symposium, Elizabeth Dávid-Barrett and Paul M. Heywood

A systems approach to corruption

  1. Learning to understand corruption as a systemic problem, Johannes Tonn
  2. Eradicating Corruption: You Can’t Just Pin Your Hopes on Democracy, Elisabeth Kramer
  3. Informal networks: the invisible drivers of corruption and implications for anti-corruption practice, Claudia Baez-Camargo, Saba Kassa and Cosimo Stahl
  4. What ‘hidden’ success stories tell us about anti-corruption policy and practice, Heather Marquette and Caryn Peiffer
  5. Pressure to change: a new donor approach to anti-corruption? Phil Mason

Broadening the definition of corruption

  1. Fighting corruption through strengthening financial integrity: Reflections on Pakistan’s experience, Tom Keatinge and Anton Moiseienko
  2. Add women and stir? Exploring the gendered dimension of corruption, Rrita Ismajli and Miranda Loli

Moving away from compliance-based, regulatory approaches to anti-corruption

  1. Fighting Corruption with Insights from Behavioral Science, Johann Graf Lambsdorff
  2. Focusing efforts and blurring lines: the OECD’s shift from ethics to integrity, Sofia Wickberg
  3. Rethinking corruption risk management for global health programmes: from compliance-based approaches to informed programme design, Sebastian Bauhoff, Sarah Steingrüber and Aneta Wierzynska
  4. Interpreting anti-corruption within a public ethics of accountability, Emanuela Ceva and Maria Paola Ferretti
  5. Using a social norms approach to tackle corruption in Nigeria, Abdulkareem Lawal

New roles for the private sector in tackling bribery and corruption

  1. Market for Bundles: A New Stage of Foreign Anti-Bribery Enforcement, Branislav Hock
  2. Towards a system of compensation for the victims of foreign corruption, Friederycke Haijer
  3. Public/private partnerships – an opportunity or risk for anti-corruption? Nick J Maxwell
  4. Communicating with SMEs on anti-corruption, Brook Horowitz and Jan Dauman
  5. Charting a New Path of Anti-Corruption in Africa: Bringing the Private Sector in from the Cold, Tahiru Azaaviele Liedong

Engaging more local and community partners in anti-corruption

  1. “Bottom Up” Corruption Prevention, Jennifer Widner and Tristan Dreisbach
  2. Look beyond the nation-state: Local-level success stories may reflect different power dynamics, Tom Shipley
  3. Nuevo Leon’s Anticorruption System: Taking Stock of an Ongoing Experiment in Fighting Corruption at the Local Level, Bonnie J. Palifka, Luis A. García and Beatríz Camacho
  4. Can Customary Authority Reduce Risks of Corruption and Local Capture? David Jackson and Jennifer Murtazashvili
  5. Every Penny Counts: Exploring Initial Strategies for Successful Open Contracting Initiatives in Challenging Environments, Tom Wright, Eliza Hovey and Sarah Steingruber
  6. Empowering Agents of Change, Phil Nichols

OECD Nations Should Criminalize the Unexplained Wealth of Politically Exposed Persons

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Today’s guest post is from Hamid Sharif, Managing Director, Compliance, Effectiveness and Integrity, for the Asian Infrastructure Investment Bank.  Writing in his personal capacity, he urges OECD countries to enact laws like that giving the British government the power to demand public officials from another nation explain how they acquired assets held in Britain.  If the official cannot show the assets were purchased with honestly-obtained monies, they are confiscated.  The laws Mr. Sharif advocates would provide that if the official were from a developing country, the seized assets would go to development projects in the victim state.  The views expressed in no way reflect or represent those of AIIB, its Board, or Management.

Since 1996, when then World Bank President James Wolfensohn condemned corruption as a “cancer” which stood “as a major barrier to sound and equitable development,” combating corruption has figured prominently on the international development agenda. In 1997, the OECD nations agreed to make it a crime to bribe a foreign public official, and in the early 2000s the World Bank, the African Development Bank, and the other multilateral development banks (MDBs) introduced corruption prevention policies into their procurement rules, adopted anti-corruption policies, established procedures for investigating corruption in their operations, and instituted systems for sanctioning firms and individuals found to have engaged corruption. Beyond ring-fencing their own projects against corruption, both the MDBs and bilateral development agencies have worked to strengthen institutions to prevent corruption in developing countries. Civil society in both developing and developed states has also stepped up its efforts to fight corruption.

Both the MDBs and bilateral donors have urged developing nations to operate with greater transparency and accountability and funded projects to strengthen anticorruption agencies, judiciaries, and other domestic institutions responsible for combatting corruption. Today there is far more information on corruption and how to fight it available to citizens of the developing world than 20 years ago. The result has been a multitude of reforms aimed at preventing or deterring corruption, from the spread of right to information laws to more effective anticorruption laws and agencies.

Despite this progress, in most developing countries institutions are not yet strong enough to investigate and successfully prosecute the corrupt acts of senior government officials whether elected or appointed, individuals who in antimoney laundering parlance are, along with their relatives and close associates termed “politically exposed persons” or “PEPs.”  In many countries, investigating and prosecution agencies as well as courts lack the independence, security, and institutional capacity to instill public confidence in their ability to deal with high-level political corruption perpetrated by PEPs. Continue reading →

Carr Center Conference on Human Rights and Corruption: Full Video

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There’s been a great deal of recent interest, in both the anticorruption community and the human rights community, about the connections between these topics. Back in May 2018, the Carr Center for Human Rights at the Harvard Kennedy School held a conference on this topic (entitled “Corruption and Human Rights: The Linkages, the Challenges, and Paths for Progress”). I posted a link to the written summary report of the conference last summer. I’m now pleased to report that a full video of the all-day conference is available here.

It’s long (over 4 1/2 hours), so here’s a quick guide to what speakers and presentations you can find where: Continue reading →

The Case for Abolishing Police Commissioners’ Extendable Terms in Israel

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The investigations into corruption allegations against Israel’s Prime Minister Benjamin Netanyahu have received massive attention from the media in Israel and around the world ever since they began in late 2016. In one of the most recent developments, last September Israel’s Minister of Public Security, Gilad Erdan, officially announced his decision not to extend the three-year term of the current head of the Israeli Police, Commissioner Roni Alsheich, by an additional year. Therefore, Alsheich is expected to complete his tenure at the end of this year. Erdan ascribed his decision not to extend Alsheich’s tenure to “differences of opinion and divergent approaches on various issues, some of them substantial and weighty, and which had a significant impact on the public’s trust in the police.” Opposition members and commentators, however, claimed that this decision was driven by the fact that Alsheich has been (or has been perceived as) leading the investigations into Prime Minister Netanyahu. According to the critics, Erdan, a member of Netanyahu’s Likud Party, was acting to please influential senior members of the Likud, as well as Netanyahu himself – an allegation that Erdan denied.

The facts of this particular case are murky. There is no solid evidence to show that Erdan’s decision not to extend Alsheich’s term was related to the latter’s involvement in the Prime Minister’s corruption probe. (In fact, even critics of Erdan’s decision do not seem to claim that Alsheich’s commissionership was flawless.) Nevertheless, this incident highlights a larger institutional flaw in Israel’s current practice of appointing police commissioners for three years with the option for extension.

Israeli law does not actually specify a fixed length for a police commissioner’s term, nor does it mention anything about the potential for term extension. In fact, Israel’s Police Ordinance says only that the commissioner is to be appointed by the government, per the recommendation of the Minister of Public Security. However, over the years it has become an accepted practice (though not without exceptions) that the police commissioner is appointed for a term of three years, and toward the conclusion of that term, the Minister of Public Security decides whether to recommend that the government extend the commissioner’s term by approximately one additional year. This practice should be abolished. Instead, the law should be amended such that the commissioner would be appointed for a fixed, non-extendable term (except in certain emergency situations) – a proposal that has been advocated by commentators and some members of the Knesset (Israel’s parliament), but so far has gone nowhere.

There are three strong arguments, from the perspective of anticorruption policy, for giving the police commissioner a fixed non-extendable term (at this point, regardless of its exact duration): Continue reading →

Myanmar Should Adopt Formal User Fees To Displace Petty Bribery

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Corruption is part everyday life in Myanmar. While the wealthy can use bribery to get around the law, for the vast majority of Burmese citizens, bribery is necessary to get things done even when the law is on your side. The term “tea money” exists in common parlance to describe the small bribes necessary to obtain even the most basic of services—bribes that are so ubiquitous that many people don’t think they count as corruption. The imposition of unofficial, discretionary and discriminatory “fees” means that formally public services are in practice “privatized.”

One explanation for the persistence of this petty corruption is that both the national government and the regional governments lack the revenue necessary to provide the public services that, under Myanmar’s Constitution, the government is supposed to provide. According to the Asia Foundation, “Decades of deliberate neglect of Myanmar’s tax-administration system have left the country with one of the lowest tax takes in the world [….] Myanmar’s tax revenues in 2016–17 were only 6–7% of GDP. This compares to 10–20% of GDP for countries at similar levels of income.” The country does earn significant revenue from natural resources, but these rents have gone into the pockets of military elites; other revenue sources are severely limited. When the demand for government services and benefits outstrips the supply, people become willing to pay extra for the promised public goods. The idea that these extra fees are acceptable is exacerbated by the fact that Myanmar’s lower-ranking public servants earn very low official salaries. But allocating public services on the basis of bribe payments is not fair, equitable, transparent, or efficient.

In an ideal world, Myanmar would reform its tax system, collect adequate revenue, pay its public servants decent salaries, and be able to provide all of the goods and services to which its citizens are legally entitled. But while we can all hope Myanmar works toward that goal, nothing like that is going to happen anytime soon.

A more practical short-term solution is to raise the official administrative fees—or “user fees”—for public services. Continue reading →

Guest Post: The World’s Biggest Anticorruption Legislative Package You Haven’t Heard About Is in Brazil

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Today’s guest post is from Professor Michael Freitas Mohallem (head of the Center for Justice and Society at Fundação Getulio Vargas (FGV) in Rio de Janeiro, Brazil), Bruno Brandão (Director of Transparency International, Brazil), and Guilherme France (a researcher at FGV).

Transparency International’s Brazilian chapter, together with scholars at FGV’s Rio and Sao Paolo law schools, are leading a wide-ranging effort, with input from multiple sectors of Brazilian society, to develop a package of legislative, institutional, and administrative reforms—the “New Measures Against Corruption”—that will address the systemic causes of corruption and offer long-term solutions. The project, which was developed over approximately 18 months in 2017 and 2018, was prompted by two related developments. First, so-called Car Wash (Lava Jato) operation has uncovered one of the biggest corruption scandals in modern times, implicating hundreds of politicians, civil servants, and business leaders. Second, although the Lava Jato operation led to a proposal, spearheaded by some of the Lava Jato prosecutors themselves, for “Ten Measures Against Corruption,” which was endorsed by over 2 million people, that effort was stymied by the National Congress. So, despite the success of Lava Jato in exposing and punishing corruption, Brazil has not yet developed the necessary long-term reforms to address the underlying sources of the problem.

The New Measures Against Corruption are intended to provide a path forward for Brazil, setting out a bold reform agenda that addresses issues relating to prevention, detection, and prosecution of corruption. The New Measures consist of a package composed of 70 anticorruption measures—ranging from draft federal bills, proposed constitutional amendments, and administrative resolutions—in 12 categories:

  1. Systems, councils and anticorruption Guidelines;
  2. Social accountability and participation;
  3. Prevention of corruption;
  4. Anticorruption measures for elections and political parties;
  5. Public servant accountability;
  6. Public servant investiture and independence;
  7. Improvements in internal and external control;
  8. Anticorruption measures for the private sector;
  9. Investigation;
  10. Improvements in criminal persecution;
  11. Improvements in the fight against administrative improbity;
  12. Tools for asset recovery.

The complete report on all 70 proposals (which runs 626 pages, and so far is only available in Portuguese) is here. Further discussion of the specific proposals would be welcome, both from domestic and international commentators, and we hope that at some point soon we will be able to provide summaries and translations of all of the measures. But in the remainder of this post, we want to offer some more background on the process that we used to develop the New Measures, as well as the prospects going forward for pushing the government to adopt these reforms. Continue reading →

Complying with Antibribery Laws: Mike Koehler’s Strategies for Minimizing Risk Under the FCPA and Related Laws

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Professor Mike Koehler is perhaps the leading critic of the Foreign Corrupt Practices Act – or at least of how the U.S. Justice Department and Securities and Exchange Commission currently enforce it.  On his FCPA Professor Blog, he regularly bemoans the way the enforcement agencies have stretched a law its authors wrote to outlaw hard core bribery to make donations to foreign charities, internships for relatives of business associates, birthday gifts to business partners, and other seemingly innocuous  conduct a serious felony under American law. Such broad interpretations of the law’s antibribery stricture could never withstand judicial review he argues, but because the costs, reputational and otherwise, of challenging an FCPA enforcement action are so great, companies facing FCPA charges quickly settle rather than contest the agencies’ interpretation in court.  The result is the agencies not only enforce the law but their interpretations in effect make it as well.

So what advice does Professor Koehler proffer businesses wanting to avoid running afoul of the FCPA or the similar laws of other nations in his new book Strategies for Minimizing Risk Under the Foreign Corrupt Practices Act and Related Laws?  Does he urge a corporation threatened with an enforcement action based on an overly broad reading of a law to fight back?  Has he produced a polemical guide to compliance?  One written for the risk-taking corporate maverick?  Is this how he separates his book from the many other compliance guides flooding the market?

Not at all. To the contrary, what distinguishes Professor Koehler’s book from many of its competitors is its straightforward, easy to read exposition of what any firm should do to minimize the chances that, thanks to the wayward act of an employee or consultant, it will face allegations it has bribed a government official. In eight tightly-written chapters, he brings his encyclopedic knowledge of FCPA cases, pre-trial settlements of enforcement actions, and the commentary on antibribery law to bear to explain how to develop and implement a sound, reasonable, cost-effective antibribery compliance program. Along the way he chucks the jargon that has grown up around antibribery compliance programs, opting instead for clearly written prose that demystifies rather obscures the process all firms should follow to develop and implement preventive measures.

Take his account in chapter six on how to conduct a risk assessment. Continue reading →

The Debate Over the International Anticorruption Court Continues… This Time in Podcast Form!

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As many GAB readers are aware, Judge Mark Wolf’s vigorous advocacy for the creation of an International Anti-Corruption Court (IACC), modeled on but distinct from the International Criminal Court, has prompted a great deal of commentary and discussion on this blog (see, for example, here, here, here, here, and here), and elsewhere.

Last month Judge Wolf and I had the opportunity to sit down with Alexandra Wrage, the President of TRACE International, to discuss the IACC proposal on an episode of TRACE’s “Bribe, Swindle, or Steal” podcast. The direct link to the podcast is here. You can also find the link on the TRACE podcast main page, which also includes links to a number of past podcasts on anticorruption-related topics, which might also be of interest to GAB readers.