Will the Swiss Government Heed Civil Society’s Advice When Returning Stolen Assets to Uzbekistan?

Posted on by
Reply

Readers of this blog know the Swiss government faces a dilemma in returning several hundred million Swiss francs of stolen assets to Uzbekistan (here and here).  Although the current government has taken small steps towards reform, it remains dominated by the same clique of Soviet-era apparatchiks whose corrupt ways were behind the theft of the assets. Returning the money thus runs a high risk that it will go right back to the culprits or their cronies.

At the same time, the Swiss government has an obligation under the UN Convention Against Corruption to return the assets. Moreover, thanks to decades of misrule, living condition for the average Uzbek remain dismal at best.  Money for everything from basic education and health programs to investment in public works is desparately needed.

Uzbek civil society now offers a solution to the Swiss dilemma.  Acknowledging the reformist leanings of the current government, and wanting to encourage them, civil society proposes that the Swiss government return the funds in tranches.  The return would be keyed to progress in realizing the kinds of reforms the government says it is committed to making.   Internationally recognized measures would be used to gauge progress.

A phased, conditioned return has two advantages.  It offers those in the Uzbek government leverage to persuade reluctant colleagues of the need for change.  At the same time, a phased return avoids swamping the government with a massive amount of money its primitive public financial system simply couldn’t manage responsibly.

The proposal appears in a letter to Swiss authorities authored by prominent Uzbek citizen, both those who have had to flee the country to escape political repression and those (anonymously) who remain.  The English version is here; a Russian version here.  A commentary on the proposal in the Swiss press is here, and background on the circumstance the led to the theft is here.

Guest Post: The Problem With Anticorruption Diagnostic Tools Is Not (Primarily) Too Much Standardization

Posted on by
Reply

José-Miguel Bello y Villarino, an official with the Spanish Ministry of Foreign Affairs and doctoral candidate at the University of Sydney, contributes today’s guest post:

There is a wide debate about how to produce and use data to assess and compare countries’ performance, particularly in domains that are, by nature, global such as human rights. In the corruption domain there are some well-known international indexes that purport to express a country’s perceived corruption level in a single number, such as the Corruption Perceptions Index (CPI) published annually by Transparency International (TI). Other diagnostic tools have been developed to assess individual countries’ anticorruption frameworks and policies against some global standard or benchmark. Among the latter, TI produces the National Integrity System (NIS) Country Assessments.

These assessments do not try to determine how much corruption there is in a country, but rather “how well a country tackles the problem.” NIS assessments do not aim to give each country a final “score” that can be compared to the scores of other countries. The assessments’ declared objective is to look into the effectiveness of each country’s anticorruption institutions by focusing on a standard set of “pillars” (things like democratic institutions, the judiciary , the media, and civil society). Consequently, NIS assessments are not meant to provide definitive conclusions, but rather observations within a common framework to supply a starting point for analysis, and to identify risks and possible areas for improvement. Their conclusions are designed to help stakeholders work to develop more concrete and country-specific responses.

The NIS Country Assessments, and similar tools (TI has identifies roughly 500 diagnostic tools used in the anticorruption area), have come in for a fair share of criticism. Much of this criticism centers upon their allegedly formalistic, formulaic, standardized approach to assessing anticorruption institutions. Some of those criticisms have appeared on this blog. A few months ago Richard Messick posted a commentary on a piece by Paul Heywood and Elizabeth Johnson that challenged the relevance and value of NIS reports for developing democracies (using Cambodia as an illustrative example), principally due to insufficient appreciation of cultural distinctiveness and an overemphasis on compliance-based approaches. Last month, Alan Doig’s post continued this conversation. Mr. Doig defended the value of the NIS Country Assessments as they were originally conceived, but argued that TI’s current approach to NIS assessments has become overly formalistic, which limits the utility of NIS country studies as an effective starting point for analysis or platform for progression. Though coming from a different perspective, Mr. Doig’s criticism is very similar to the core argument of Professors Heywood and Johnson. In essence, they share a skepticism that one can usefully apply broad global standards or categories to individual countries, given each country’s unique, particular, idiosyncratic circumstances.

Respectfully, I think these criticisms go too far. Taking individual country circumstances into consideration of course has value. However, standardization of assessment methodologies, the somewhat “formulaic” approach, can have benefits that may outweigh the costs. Continue reading →

Can Blockchain Help Bypass the Problem of Corruption in Development Aid?

Posted on by
Reply

Corruption undermines the effectiveness of foreign aid. While precise numbers are hard to come by, numerous press reports suggest that mass “leakages” (a euphemism for probable theft) are all too common. UN Secretary General Ban Ki Moon has reportedly asserted that approximately 30% of foreign aid is lost to corruption, though controversy over the magnitude and impact of the problem remains (see, for example, here, here, and here). The perception of a severe problem has naturally led to searches for innovative solutions, including technological solutions. One possibility that has been garnering some recent attention is blockchain technology. In fact, a few months ago, the Ministry of Foreign Affairs of Denmark, the think tank Sustainia, and the blockchain currency platform Coinify jointly published a report delineating how blockchain technology can be used to “hack the future of development aid.”

Blockchain systems make use of a shared digital “ledger,” in which each transaction contains the history of all previous transactions; because the ledger is transparent and distributed across many computers, rather than stored in a centralized database, it is (allegedly) not susceptible to manipulation or hacking, and ensures the transparency of all transactions (though not necessarily the real-world identities of those engaged in those transactions). Blockchain is probably best known as the technology that makes possible Bitcoin and other so-called cryptocurrencies. But blockchain technology and its applications are rapidly evolving, and many have already begun to see how this technology can be used as a tool to combat corruption, for example by increasing transparency in land records and by using blockchain systems to support anti-money laundering efforts. Now, companies such as Disberse, AID: Tech, and Donorcoin are developing blockchain-based fund management systems that, their proponents contend, can help reduce corruption in development aid. Blockchain technology would allow donors to transfer money to end users directly (and instantaneously), bypassing the formal financial institutions and corrupt bureaucracies that have often been the source of financial leakage, and preserving a transparent record of all transactions. This would help ensure that aid money goes to where it is intended to go.

Continue reading →

Will Brazilians Elect Their Own Donald Trump?

Posted on by
2

Will Brazil get its own Donald Trump? Brazil’s next election is right around the corner (the campaign starts August 16, and first round elections are October 2) but currently Jair Bolsonaro—a right wing, pro-gun rights, anti-gay firebrand who has proudly branded himself the “next Donald Trump”—is polling first among eligible candidates, trailing only former president Lula Inácio de Silva—who as of now is not actually allowed to run due to his conviction on corruption charges—and the “null option” (that is, none-of-the-above). What explains Bolsonaro’s appeal? In large part, the issue of corruption. Revelations of graft and bribery have continued to pile up in Brazil over the last few years—most notably (though not exclusively) in connection with the so-called Car Wash investigation of corruption in Brazil’s state-owned oil company, which may have involved upwards of $5 billion in stolen public funds. These corruption scandals have already led to the impeachment and removal of former President Dilma Rousseff, criminal charges against the current President Michel Temer, and the conviction and imprisonment of former President Lula. Given all this, it’s little wonder that in a recent poll, corruption was ranked as the most important issue for 62% of Brazilian citizens.

Much as Donald Trump pledged to “drain the swamp,” Bolsonaro has centered his campaign on the issue of corruption. He asserts that he is the only candidate in the election who has not engaged in some form of corruption or white collar crime. Of the five major presidential candidates, he’s the only one who is not either from a major party that has been mired in a recent corruption scandal, or been part of a coalition with one of those tainted parties. (Bolsonaro’s party, the PSL (Social Liberal Party) is small, barely present at the national level, and he is advertising his status as a political outsider as one of his appeals.) Thus Bolsonaro has presented himself as the only candidate who will usher in a new, less corrupt era for Brazil.

This places some Brazilian voters who care deeply about corruption in a difficult situation. Many Brazilians may feel like their only alternative to perpetuating a corrupt system is to take a gamble on a disruptive figure like Bolsonaro. Indeed, at a recent campaign event, supporters cited his aggressive anticorruption and anti-crime stances as the principal reasons why they were planning to vote for him. Diehard supporters aside, it’s possible that some Brazilian voters who are not totally comfortable with Bolsonaro might nevertheless be swayed by his outsider persona and his aggressive attacks on Brazil’s current political class. For those who have followed U.S. politics over the past few years, this probably sounds disturbingly familiar—and indeed seems to fit into a now-recognizable pattern, also manifested in the Philippines’ 2016 election of populist, zero-tolerance Duterte. It’s precisely that similarity that should, and I hope will, give these on-the-fence Brazilian voters pause. Continue reading →

Guest Post: Towards an African Voice on Anticorruption

Posted on by
1

Today’s guest post is from Selemani Kinyunyu, Senior Policy Officer for Political and Legal Matters at the African Union Advisory Board on Corruption. The views expressed in this post are his own.

The African Union (AU) has declared the year 2018 is the African Anti-Corruption Year, and the fight against corruption was a central focus of the 31st Summit of the AU, which was held this past July 1 and 2 in Mauritania. The Summit, along with other recent developments, have made clear that there is an emerging African voice on this issue, one that emphasizes certain issues of pressing importance and that articulates a distinctive perspective on these issues. The AU Summit in particular highlighted four notable issues: Continue reading →

Government Donors Should Demand More Accountability and Integrity from International Aid Charities

Posted on by
1

Oxfam, the international aid organization with more than 10,000 staff worldwide and many hundreds of millions of dollars of income from donations alone, has been getting a lot of bad press recently. Many readers will likely be familiar with the Oxfam sex scandal, wherein Oxfam workers in Haiti had sex with victims of the 2010 earthquake, perhaps including child victims. In 2014, Oxfam’s former antifraud chief was arrested for embezzlement. And last February, the chairman of Oxfam International, Juan Alberto Fuentes, was arrested in Guatemala for his role in a corruption scandal that developed over his time as the finance minister of Guatemala. Although the arrest of Mr. Fuentes was for conduct that predated his work at Oxfam, the arrest sparked further questions about corruption and accountability in the organization, and called into question the reliability and credibility of Oxfam’s anticorruption advocacy work.

Of course, both sex scandals and corruption scandals happen in other organizations too, including governments and for-profit corporations. So far as I know, there’s no evidence that aid organizations are systematically more prone to such institutional failures than other entities. Yet these scandals feel particularly disturbing when they occur at an organization like Oxfam, perhaps because we implicitly hold do-gooder NGOs to a higher ethical standard. And in fact we should: both the legitimacy and effectiveness of the international work done by NGOs like Oxfam rests, at least to some degree, on some sense that these organizations have the moral authority to enter a country and change the way things are run. To retain that moral authority, aid organizations must take extra steps to ensure they remain above suspicion. The failure of the Oxfam board to conduct due diligence on Fuentes is a strike against Oxfam’s credibility, and this fundamentally hurts its mission.

The question is what Oxfam, or similar organizations, can do to increase the chances of meeting these high standards, and avoid similarly embarrassing scandals in the future. My answer: Oxfam should tie its own hands and mandate top-down, independent integrity oversight, supervised by donating governments.

Continue reading →

“Corruption Proofing” Statutes and Regulations: The Next Big Thing in Anticorruption Strategy?

Posted on by
3

So-called “corruption proofing” is an ex ante preventive measure that entails review of the form and substance of legal acts (principally statutes or regulations) in order to minimize the risk of future corruption. It is a relatively new strategy in the anticorruption toolkit. As of 2015, 13 countries had enacted some form of corruption proofing: Armenia, Albania, Azerbaijan, Kazakhstan, South Korea, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Ukraine, and Uzbekistan.

While there is some divergence between each country’s specific practices, generally a corruption proofing system requires that draft and/or existing legal acts (statutes and regulations) are subjected to a review process by a designated institution (or institutions), which are tasked with identifying “corruptogenic factors”—aspects of those laws that might create risks of future corruption. Examples of corruptogenic factors that corruption proofing systems have identified include unclear definitions of the rights and duties of public officials; broad discretionary power; over-broad freedom to enact by-laws and other subsidiary legislation; linguistic ambiguity; inadequate sanctions; lack of (or conflicting) regulatory and administrative procedures; and disproportionate burdens on citizens to exercise their rights. The reviewing institution then makes recommendations for changes to the law that would mitigate those risks. The governmental body from which the legal acts originate (the parliament, in the case of statutes) is obligated to consider these recommendations but is not required to implement them, though in some systems the governmental body must state its reasons for rejecting the reviewing institution’s recommendations. Another common practice is that the proofing agency’s recommendations (and, if applicable, the explanations for why they were disregarded) are circulated as an annex to the draft law being debated in the legislature and are also published online, thus providing both lawmakers and citizens with more information about the potential corruptogenic factors associated with the law. Continue reading →

Guest Post: By Refusing to Respect Attorney-Client Confidentiality, European Courts Threaten To Undermine Anti-Bribery Enforcement

Posted on by
Reply

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris and New York offices of Debevoise & Plimpton and a Lecturer at Columbia Law School, who contributes the following guest post:

In the fight against transnational bribery and other forms of corporate crime, a key element of some national prosecution agencies’ strategy is to encourage corporations to “self-report” to the government and to cooperate with any subsequent investigation. The United States Department of Justice (DOJ) pioneered this strategy, but other jurisdictions are beginning to adopt it as well. The basic approach is to offer companies both a stick and a carrot: The stick: If corporations do not self-report and are ultimately discovered, they will be prosecuted vigorously. The carrot: A self-reporting, cooperating company can obtain a more favorable settlement, and perhaps avoid prosecution altogether. From a public policy perspective, it is vastly more efficient for prosecutors to work with corporations in the fight against corruption, essentially enlisting them as partners to detect, investigate, and bring to justice the individuals responsible for corruption, than for prosecutors to do all this work themselves.

From the company’s perspective, though, the decision whether to self-report is difficult: By making a first phone call to a prosecutor, the company all but commits to negotiating a settlement and abandons both the chance of non-detection and the (perhaps scant) possibility of a successful defense. At a minimum, starting this process will entail large costs (particularly legal fees), as well as risks, including the risk that prosecutors may discover more matters to be investigated. There is also the problem, already discussed on this blog, of evaluating whether a negotiated outcome in one country will preclude or deter prosecution in another. And at least at the early stages, the company may not even be certain whether a violation has in fact taken place, or how widespread or egregious such violations may have been. For these reasons, when a company’s leaders learn that there may have been violations of anti-bribery or other laws, the company will retain a seasoned legal team to oversee a thorough internal investigation of the facts in order to make a reasoned decision whether, and where, to self-report.

When a company asks lawyers to do this, it is essential that the attorneys’ work be protected by the attorney-client privilege, at least until such time as the company decides to share fruits of the investigation with prosecutors. If a company knew that everything learned or generated by its lawyers in the course of an internal investigation could be subject to seizure or forced disclosure to prosecutors, then companies would face a huge disincentive to start the process of conducting an internal investigation at all, since doing so could simply create a handy road map – and compelling evidence — for the prosecutor. In the United States, although the conduct of such an internal investigation poses a number of possible traps for the unwary, if the investigation is properly managed then the company can generally be assured that no prosecutor will get her hands on the fruits of its lawyers’ work unless and until the company specifically authorizes such disclosure. Matters are more complicated in Europe, however. For example, in-house counsel are generally not considered to be “attorneys” capable of generating a protectable professional privilege. And in some countries, such as France, the client does not necessarily have the power to “waive” the secret professionel (the rough equivalent of the attorney-client privilege) at all. Most notably—and most troublingly—recent court decisions in the UK and Germany have gone even further in making the results of lawyers’ internal investigations discoverable by prosecutors without the company’s consent. These decisions, if not reviewed or curtailed by legislation, will create huge disincentives to self-investigation, and hence to self-reporting. Continue reading →

India and Ireland Enact Anticorruption Compliance Program Laws

Posted on by
2

Legislation just approved in both Ireland and India create a powerful incentive for businesses to establish anticorruption compliance programs.  Both give firms a defense to criminal charges if one of their employees or agents is caught paying a bribe. Section 18 of the Irish Criminal Justice (Corruption Offences) Act 2018 provides that a “body corporate” can avoid liability if it can prove that “it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.”  Under section 9 of India’s Prevention of Corruption (Amendment) Bill 2018, a “commercial organization” escapes liability if it proves it “had in place adequate procedures in compliance of such guidelines as may be prescribed [by the Attorney General] to prevent persons associated with it from undertaking such conduct.”

The compliance provisions differ, as the quoted language shows, in two respects.  India imposes liability on any “commercial organization,” which includes not only corporations but partnerships and business associations “of any kind,” whereas the Irish law is limited to corporations alone.  Second, while the Irish Minister for Justice and Equality has the discretion to issue guidance on what constitutes “all reasonable steps” and “all due diligence” to prevent employee bribery, the Indian Central Government must, “in consultation with the concerned stakeholders . . .  prescribe such guidelines as may be considered necessary which can be put in place for compliance by [commercial] organizations.”

The Indian requirement follows a report of the Indian Law Commission on an earlier version of the bill.  Noting the “immediate and significant impact” the bill would have on corporations, particularly smaller ones, and that both the U.K. Bribery Act and the U.S. Foreign Corrupt Practices Act require law enforcement authorities to issue compliance guidance, the Commission recommended that the liability provision cum compliance defense be effective only once the Central Government published guidance on what was expected of companies wanting to assert a compliance defense.  An earlier post noted the burgeoning literature on compliance programs by governments, international organizations, and commentators alike evidences a broad consensus on what constitutes an effective compliance program.  Hence in practice the requirement shouldn’t lead to any real difference between what will be required under Indian law and what other nations with a compliance law already require.

The Nations with Anticorruption Compliance Laws table shows Ireland and India are now the fourteenth and fifteenth nations to enact legislation creating a defense to a criminal charge for businesses that have a compliance program.  (Readers are asked to submit a comment if I missed any country.)  With the six countries plus Quebec that require certain firms to have a compliance program, and with the United States, which both tempers corporate liability for firms with an “effective” compliance program and requires those winning public contracts of any appreciable size or duration to have one, the number of jurisdictions with some type of compliance program law now stands at 23.

What are the other 163 parties to UNCAC waiting for?  Why aren’t they enlisting their private sector in the fight against corruption?  Do they really think they can win the fight on their own?

A Big Victory in the Emoluments Clause Litigation Against Trump–But Might It Be Too Big To Last? A Search for Limiting Principles…

Posted on by
2

As many of our readers may already be aware, there was a significant and encouraging development last week in the litigation challenging President Trump’s ongoing business dealings with foreign and state governments as unconstitutional under the U.S. Constitution’s Foreign and Domestic Emoluments Clauses. For those readers who haven’t already been following this, here’s a quick synopsis. (Readers who have been following this issue can skip to the end of this bullet point list.)

  • Although President Trump claimed he would turn over his business operations to his sons Donald Jr. and Eric, in fact President Trump retains substantial interests in those businesses. Several of those businesses, particularly his hotels (and among those hotels, especially his DC hotel, located at a property leased from the federal government) do substantial amounts of business with representatives of foreign governments, as well as with state governments. Many people have argued that accepting foreign government or state government patronage at Trump hotels violates the Foreign and Domestic Emoluments Clauses, respectively. The Foreign Emoluments Clause states that “no Person holding any Office of Profit or Trust under [the United States] shall, without the consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any … foreign State.” In other words, no officer of the U.S. federal government can accept an “emolument” (whatever that is – more on this question in a moment) from a foreign government. The Domestic Emoluments Clause states that the President “shall not receive [during his term of office] any other Emolument [besides his official salary] from the United States, or any of them.” In other words, the federal government can’t provide any “emolument” to the President other than his official salary, nor can any state government provide any emolument to the President.
  • So, the argument goes, if a foreign government pays for rooms at a Trump hotel, which increases the Trump Organization’s profits and hence President Trump’s personal wealth, President Trump has received an “emolument” from a foreign state. Similarly, if a state government pays for rooms at a Trump hotel (or purchases other goods or services from a Trump business), the President is receiving an emolument from a state government. An additional violation of the Domestic Emoluments Clause may have occurred when the General Services Administration (GSA) (the federal government agency which is, in essence, the landlord for the Trump DC hotel) concluded that the Trump Organization could retain its lease even after Trump’s inauguration, despite the fact that the express terms of the lease appear to preclude this. The argument goes that in allowing the Trump Organization to keep its lease on the property, a federal government agency (in this case the GSA) had granted an “emolument” to the President, in violation of the Domestic Emoluments Clause.
  • Several separate lawsuits alleged these constitutional violations. When they were filed, many people (including me) expected the suits to be dismissed on jurisdictional grounds, in particular though not exclusively the inability of the plaintiffs in these cases to show that they were personally and directly harmed by the alleged constitutional violations. And that was indeed what happened to the first case, filed by a civil society nonprofit in New York. But in a separate lawsuit filed in Washington DC by the DC government and the state of Maryland, the judge last April determined that court had jurisdiction over at least some of the plaintiff’s claims (including the claims described above).
  • The President’s lawyers then filed a motion to dismiss, arguing that even if everything the plaintiffs alleged were true (a stipulation the President reserves the right to deny later), there’s no constitutional violation, because neither the profit from a business transaction nor a favorable regulatory decision would count as an “emolument.” Rather, on the President’s view, an “emolument” is only a payment made as compensation for official services.
  • Last week, the District Court issued an order denying the President’s motion to dismiss, rejecting the President’s narrow interpretation of “emolument” and instead endorsing a sweeping definition in which an emolument, for purposes of the relevant constitutional clauses, includes anything of value.

That ruling, as Joe Biden might say, is a big f’ing deal. It’s not the end of the case—far from it—but it’s a huge win for the plaintiffs. Among other things, it means there will now be more fact-finding, including discovery, and probably in a few months we’ll have motions for summary judgment and another judicial order in response, which will likely both keep the issue in the news and possibly bring to light even more damaging information about the President’s business dealings. (The President’s lawyers may try to get an appeals court to consider the jurisdictional issue before this process moves forward by asking for what’s called an interlocutory appeal, but by friends who are experts in civil procedure tell me that such a motion is extremely unlikely to succeed, or at least it would be in an ordinary case.)  So, speaking as someone who was initially skeptical of this litigation—who not only thought it was unlikely to succeed but who worried that it could backfire—I’m delighted to confess error. (I suppose we could still debate whether this was a smart gamble at the time, but it does seem that the gamble is paying off, and who am I to argue with success?)

That doesn’t mean that these suits will ultimately succeed. Even if the plaintiffs prevail in the District Court, there will be an appeal, and I think the odds of the plaintiffs prevailing in the Court of Appeals are low. And even if they do win, the Supreme Court is almost certain to hear the case, and I predict that the Court would find a way to dismiss the case on jurisdictional grounds. (That said, if for some reason the Senate doesn’t confirm Judge Kavanaugh’s nomination to the Supreme Court, and in the November 2018 elections the Democrats take the Senate and vow to block any Trump nominee to fill the open seat, then it’s possible that the Supreme Court could deadlock 4-4, leaving any lower court decision in place.)

Now, in addition to the jurisdictional question, one of the issues on appeal will concern the breadth of the District Court’s definition of “emolument.” A lot of the arguments on this point concern matters of text and history. (How did 18th– century dictionaries define “emolument”? What do we learn from debates about the Emoluments Clauses at the Constitutional Convention and ratifying debates? What did early practice look like?) Those arguments are important, but I’m not going to explore them here. There is, however, a separate question of what definition of “emolument” would best serve the purposes of the Emoluments Clauses, which is closely related (if not necessarily identical) to the question of which definition would be the most sensible. I’m very sympathetic to the plaintiff and the District Court’s arguments that the main purpose of the Emoluments Clauses is to serve as broad prophylactic anticorruption measure, one that targets not only quid pro quo deals, but more broadly seeks to eliminate the possibility of governments currying favor with US officials by conferring benefits on them. And I agree that such benefits can take a wide variety of forms. Nonetheless, I do think that the breadth of the definition of “emolument”—as literally anything of value, or as any “profit, gain, or advantage”—might create some problems, and it’s important to think about how the potentially sweeping implications of this definition might be cabined.

I say this not because I’m terribly sympathetic to President Trump’s arguments that he’s not in violation of the Emoluments Clauses. Indeed, based on what I know thus far, I’m fairly confident that President Trump is violating the Emoluments Clauses, and should lose this case on the merits (though the jurisdictional arguments are a closer question). Rather, it’s important to think about appropriate limiting principles for two reasons. First, the likelihood of prevailing on appeal is higher if the plaintiffs and their allies can offer plausible rebuttals to the parade-of-horribles the President’s lawyers will argue follows from defining an emolument as “anything of value.” Second, whatever the appeals court (or perhaps the Supreme Court) says on this issue might have consequences for other cases—with other defendants and different sorts of conduct. So, in the remainder of this post I will first sketch out why the broadest version of the “emolument means literally anything of value” argument might create difficulties, and then consider a series of possible responses to those (alleged) problems. Continue reading →