Wickedly, Willfully, Fraudulently, Knowingly, and Corruptly

These are the words the court used in convicting Charles Bembridge of the criminal offense of misconduct in public office. Bembridge, an accountant in the receiver and paymaster general’s office of the British armed forces, had failed to report that certain entries in the account books had been omitted. While his conduct didn’t match up with any crime on the statute books, it was, the court said, “contrary to his duty” in an “office of trust,” and thus constituted a crime at common law “misconduct in public office.”

Bembridge appealed, arguing the unfairness of convicting him of the heretofore unknown crime. But with concern about corruption in government growing, then Chief Justice Mansfield had no trouble finding what he had done wrong criminal:

“Here there are two principles applicable: first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office: this is true, by whomever and whatever way the officer is appointed […]

Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.”

The 1783 decision in King v. Bembridge creating the offense is a prosecutor’s dream. It is also civil libertarians and human rights defenders’ nightmare.

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Commentary on the FACTI Panel’s Report and Recommendations (Part 1)

This past February, the United Nation’s cumbersomely-named “High-Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda”—which, thankfully, everyone simply refers to as the FACTI Panel—released its report on Financial Integrity for Sustainable Development. The report (which was accompanied by a briefer executive summary and an interactive webpage) laid out a series of recommendation for dealing with the problem of illicit international financial flows. Though the report states that it contains 14 recommendations, most of these have multiple subparts, which are really distinct proposals, so by my count the report actually lays out a total of 35 recommendations.

I had the opportunity to interview one of the FACTI panelists, Thomas Stelzer—currently the Dean of the International Anti-Corruption Academy—for the KickBack podcast, in an episode that aired last week. Our conversation touched on several of the report’s recommendations. But this seems like a sufficiently important topic, and the FACTI Panel report like a sufficiently important contribution to the debates over that topic, that it made sense to follow up with a more extensive analysis of and engagement with the FACTI Panel’s recommendations.

Of the 35 distinct recommendations in the report, eight of them (Recommendations 2, 3B, 4A, 4B, 4C, 8A, 11A, and 14B) all deal with tax matters (such as tax fairness, anti-evasion measures, information sharing among tax authorities, etc.). While this is an important topic, it is both less directly related to anticorruption and well outside my areas of expertise. So, I won’t address these recommendations. That leaves 27 recommendations. That’s too much for one post, so I’ll talk about 13 recommendations in this post and the other 14 in my next post.

I should say at the outset that, while some of my comments below are critical, overall I am hugely grateful to the members of the FACTI Panel for their important work on this topic. The Panel’s report should, and I hope will, prompt further discussion and careful consideration both of the general problem and the Panel’s specific recommendation. Part of that process is critical engagement, which includes a willingness to raise concerns and objections, and to probe at weak or underdeveloped parts of the arguments. I emphasize this because I don’t want my criticisms below to be mistaken for an attack on the Panel or its report. Rather, I intend those criticisms in a constructive spirit, and I hope they will be so interpreted.


With that important clarification out of the way, let’s dig in, taking each recommendation in sequence.

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To Fix the United States’ Corrupt Border Agency, Defeat Its Union

Immigration reform is likely to be a high priority for the Biden Administration, and while most of the attention will focus on substantive reforms and enforcement strategy, the agenda should also include rooting out corruption in U.S. Customs and Border Protection (CBP), the agency charged with protecting the United States’ land borders. CBP is the nation’s largest federal law enforcement agency. It is also among its most corrupt. Border Patrol agents and CBP officers are regularly arrested—at a much higher rate than other federal law enforcement personnel—for a variety of corrupt activities, including accepting bribes, smuggling drugs, collaborating with organized crime groups, and selling government secrets. (In one case, a Border Patrol agent even gave a cartel member a literal key to a border gate.) All told, U.S. border guards accepted an estimated $15 million in bribes over the 2006–2016 period. Senior CBP officials have estimated that as many as 20% of CBP employees may be corrupt, and almost half of CBP personnel say that they’ve witnessed four or more acts of misconduct by their colleagues in the preceding three years.

The story of CBP’s corruption has been well told, including in voluminous investigative reporting, an advisory panel report, and congressional hearings. Yet little has changed. And this is not because nobody has figured out what policy reforms could make a difference. Indeed, experts who have studied the problem have laid out, clearly and consistently, a package of recommendations that would make a substantial difference. That package includes two main elements. First, CPB must devote more resources to monitoring and investigating CBP personnel. For example, the agency should hire substantially more internal affairs investigators; subject exiting personnel to regular reinvestigations (including periodic polygraph examinations); and equip all officers and agents with body cameras and mandate their consistent use. Second, leadership must reform CBP’s culture, which too often tolerates bad actors and punishes whistleblowers, and must provide better training in how to respond to misconduct.

The failure to address the CBP’s corruption problem, then, has not been due to a lack of viable, feasible reforms. The main problem is political—perhaps most importantly, the entrenched opposition of the National Border Patrol Council (NBPC), the powerful union that represents Border Patrol agents. The NBPC has systematically blocked efforts to crack down on corruption. Indeed, according to James Tomsheck, who led CBP’s internal affairs unit from 2006­–2014, NBPC leadership opposed each and every one of his integrity proposals over his eight year tenure. (For example, the union opposed CBP’s initiative to proactively identify corrupt officers and agents through polygraphing.) If the Biden Administration is serious about rooting out CBP corruption, it will need to take on the NBPC.

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Rethinking the Hatch Act in a Post-Trump World

In the United States, the Hatch Act has long served as bulwark against the corrosive intersection of partisan politics and government power. Signed into law in 1939, the Hatch Act was designed to combat the corruption associated with the so-called “spoils system,” in which politicians dole out valuable government jobs to their supporters, and those supporters are in return expected to use their government positions to benefit their political patrons. Civil service laws that create a “merit system” attack the spoils system from one direction, by making politically-motivated hiring and firing more difficult. Laws like the Hatch Act complement these efforts by prohibiting government employees from engaging in partisan political activities. More specifically, the Hatch Act prohibits any federal officer or employee (other than the President or Vice President) from engaging in political activity while acting under his or her “official authority or influence.” (This prohibition, as interpreted, covers any sort of partisan political activity while on the job, including displaying political paraphernalia, distributing campaign materials, and soliciting campaign contributions.) Penalties for violating the Hatch Act can include fines, demotion, suspension, removal from office, and temporary debarment from future federal service.

Since its enactment, compliance with the Hatch Act has generally been quite good. But that changed in January 2017, when President Trump took office. Throughout the Trump years, rampant violations of the Hatch Act plagued the federal government. High-level Trump Administration officials like Ivanka TrumpJared KushnerMike PompeoKellyanne Conway, and Stephen Miller, among many others, engaged in likely Hatch Act violations, with no significant consequences. This exposed an uncomfortable truth: At least for high-level political appointees, the Hatch Act’s enforcement mechanisms are too week, and the penalties too negligible, to deter officials uninterested in complying with the law. Indeed, past compliance with the Act was likely more the product of government norms than fear of punishment.

Just to be clear, the situation is likely quite different for career civil servants who serve in government regardless of which political party holds the White House. With respect to these individuals, who comprise the overwhelming majority of the government, the Hatch Act’s prohibitions are strictly enforced, and the penalties are stiff. But for senior political appointees, the Trump Administration exposed glaring weaknesses in the Hatch Act’s efficacy, when the Administration has little interest in adhering to conventional norms of ethics and integrity. Two types of reform are needed:

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TI France Demands Dismissal of Gabon Government Claim to be Corruption Victim

TI France is moving to block an audacious, underhanded move by the Gabonese government to frustrate the confiscation of hundreds of millions in assets stolen from its citizens.  The assets are likely to be confiscated as part of the proceedings known as Bien Mal Acquis (wrongfully acquired assets), where French prosecutors are investigating the ruling families of Gabon, Equatorial Guinea and the Republic of the Congo for buying hundreds of millions of euros of French real estate and other properties with corrupt monies. In 2017, in the first case to go to trial, €150 million in French assets were confiscated from Equatorial Guineans First Vice President Teodorin Obiang (here).

Apparently anticipating a similar result, the Gabonese government recently joined the proceedings as a partie civile or civil party.  Under French law, if a court orders the confiscation of the Gabonese ruling family’s assets, the Gabonese government would then have a claim to some if not all of the assets under the theory it is entitled to recover damages suffered by the ruling family’s corruption. A just and reasonable outcome were a democratically elected government committed to its citizens’ welfare in power.

Tragically, for the Gabonese people this is not the case.  The same family responsible for stealing the nation’s wealth, the Bongos, remains in power.  TI France has now moved to have the government’s claim to be a civil party dismissed. This should be an easy decision for the presiding magistrate given how well the Bongo family’s corruption has been documented. 

The continued active participation of civil society in the landmark Bien Mal Acquis case shows how critical it is that anticorruption NGOs to represent those like the citizens of Gabon, Equatorial Guinea, and the Republic of the Congo where their governments make it impossible for corruption victims to bring cases on their own.  The TI Press Release on its move to strike the Gabonese government as a civil party is here. The origins of Bien Mal Acquis and its lessons are discussed here.

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New Podcast, Featuring Thomas Stelzer

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Thomas Stelzer, who is currently the Dean of the International Anti-Corruption Academy (IACA), and who recently served as a member of the United Nations High-Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda (a mouthful of a name, which is why this distinguished group is usually referred to as the FACTI Panel). After Dean Stelzer opens our conversation with a discussion of his own professional background and interest in corruption, the interview turns to the FACTI Panel’s report, published this past February, and the report’s recommendations for combating illicit international financial flows. (In addition to the full report, which runs to 49 pages not including annexes and references, FACTI has released a shorter executive summary, as well as an interactive web page.) I asked Dean Stelzer about several of the report’s recommendations that seemed especially pertinent to the fight against grand corruption, and he gamely responded some of the questions and concerns that I raised about certain aspects of the report. In addressing these issues, Dean Stelzer emphasized the importance of more and better research on the topic of illicit financial flows, as well as the need for sustained efforts to ensure effective implementation of reforms such as those that the FACTI Panel outlined. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Can Slovakia’s New Anticorruption Movement Avoid Common Pitfalls?

In late February 2018, news that Slovakian anticorruption journalist Jan Kuciak was shot to death at home—the first murder of a journalist in Slovakia’s modern history—shocked the country and world. Slovakians demanded that the government, controlled by the corruption-plagued Direction-Social Democracy (SMER-SD) party, investigate the brazen attack and hold the perpetrators accountable. Tensions escalated in the days following Kuciak’s murder after his last unpublished story surfaced, exposing connections between advisors to SMER-SD Prime Minister Robert Fico and a prominent Italian organized crime syndicate. Fico resigned shortly thereafter, a development which proved to be the beginning of the end of SMER-SD’s twelve-year reign. By the February 2020 general election, voters decisively ousted SMER-SD in favor of the emerging anticorruption-focused Ordinary People and Independent Personalities Party (OLaNO).

Much of OLaNO’s appeal stems from party leader and current prime minister Igor Matovic, a self-made media mogul. His signature communication method was posting videos exposing graft to social media (similar to Russian anticorruption hero Alexei Navalny, whom this blog recently discussed here). In one of Matovic’s most widely viewed videos, he filmed himself in Cannes outside the luxury home of a former SMER-SD politician holding signs saying “Property of the Slovak Republic” and alleging that the home was illegally bought with taxpayer money. Matovic also traveled to Cyprus and posted a video of mailboxes belonging to shell corporations connected to Penta, a multi-million-euro investment group; the video claimed that Penta had used the companies to evade 400 million euros in taxes. Each of Matovic’s videos garnered several hundred thousand views in a country of less than 5.5 million, which helps explain why the February 2020 election boasted Slovakia’s highest voter turnout in 20 years.

Now, just one year into its mandate, OLaNO and its coalition are hard at work rooting out corruption. The government arrested and prosecuted dozens of current and former public officials involved in graft. Those targeted include high-level figures, such as the former Finance Minister, the head of the State Material Reserves Administration, the Director of the Agricultural Paying Agency, and more than a dozen judges, including a member of the Supreme Court and the former Deputy Minister of Justice. OLaNO is also pursuing a number of legislative efforts, including aggressive judicial reform.

Can Matovic and OLaNO finally cleanse Slovakia’s reputation as the corruption “black hole of Europe”? Maybe. But while the story of an outsider stepping forward in the wake of a national scandal and securing electoral victory with an anticorruption political agenda may be a first in Slovakia’s modern history, it is not an unknown tale on the world stage—and (spoiler alert!) the story often doesn’t have a happy ending. To be sure, difficult political dynamics and entrenched domestic corruption can hamper even the most earnest anticorruption efforts. Nevertheless, examples from other countries provide some cautionary tales of how populist leaders elected on anticorruption platforms can sometimes lose their way, and offer some lessons that Matovic, OLaNO, and their supporters should take to heart going forward. Three lessons in particular stand out:

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The Perils of Over-Criminalizing Sports Corruption

Although the fight against corruption has traditionally focused on corruption in government, the anticorruption community has started to pay more attention to corruption in other spheres. One particularly prominent concern is corruption in sports (see herehere, and here). The topic of sports-related corruption includes not only corruption in the major sports associations (think FIFA and the International Olympic Committee), but also the corrupt manipulation of individual sporting events in order to win bets (whether legal or illegal). Such corrupt manipulation includes match-fixing (where corrupt actors fraudulently influence the outcome of a game); spot-fixing (where wrongdoers seek to influence events within the game that do not necessarily have a significant effect on the final outcome, such as the number of minutes an athlete plays or timing the first throw-in or corner in a soccer game); and point-shaving (where perpetrators seek to hold down the margin of victory in order to avoid covering a published point spread).

Different jurisdictions approach this sort of sports corruption differently. Many countries in Europe have enacted blanket laws criminalizing match-fixing in order to uphold the integrity of sports. The United States, by contrast, takes a narrower approach: The relevant criminal laws targeting sports corruption in the U.S.—both the Federal Sports Bribery Act (the “Act”) and comparable laws at the state level—focus solely on bribery. Furthermore, the Act has historically been used to prosecute individuals involved in paying bribes or inducing others to collect bribes, but not the people (usually athletes, coaches, or officials) who receive the bribes. Although a great deal of corruption in sports involves the payment of bribes, and would therefore be covered by these laws, some types of sports corruption are unilateral: An athlete or sports official may place bets on sporting events and subsequently undertake behavior to win those bets. For this reason, some scholars have argued that the U.S. should close this loophole by criminalizing such unilateral conduct as well.

I disagree. To be sure, unilateral sports corruption is unethical, and criminalizing it would help to prevent athletes, referees, and coaches from engaging in corrupt acts that jeopardize the integrity of sports. But the benefits of criminalizing this form of misconduct are minimal and are greatly outweighed by the corresponding costs.

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Guest Post. Corruption Victims: Law and Practice in Italy, Russia, other European States

Earlier this month, I asked readers for help on a UNODC project examining the compensation of corruption victims.  UNCAC article 35 requires states parties to ensure those injured by “an act of corruption” can initiate “legal proceedings. . . to obtain compensation.” In 2017, the UN Office on Drugs and Crime reported that virtually all 187 convention parties say their laws permit those injured by corruption to bring an action to recover damages. Yet few cases appear to have been brought.  The project seeks answers to three questions: Are there really few cases? If so, why? And what can be done to increase the number?

My thanks to the several readers who replied.  Thanks especially to Mjriana Visentin. An Italian lawyer with a Master’s Degree from the International Anticorruption Academy, Mjriana has been working on human rights and anticorruption for several years, most recently in Russia. She was kind enough to respond to my query with a thoughtful analysis reflecting both her experience representing victims of human rights abuses and corruption in Russia – categories which often overlap in practice – and current law on recovery of damages for corruption in Italy, other European states, and the European Court of Human Rights.  A valuable contribution to the global discussion on corruption victim compensation, it is below.  

Probably it would be useful to differentiate between types of corruption before discussing if victims did (or could) claim compensation.  If we are talking for example of extortion by a public official, I think that an analysis of the national case law will likely show a large number of individuals who were granted victim status and sought compensation.  [Editor’s note: a point I had not appreciated. I have subsequently learned that upon a conviction for extortion in Sri Lanka, defendants reportedly are required to return the bribe to the victim.  Example cases solicited from there or other jurisdictions.

As for other types of corruption, the situation may be more blurred.

Reviewing the laws of a number of European state members, I have seen that corruption still tends to be framed either as a victimless crime or crime against the state. This affects the view that potential victims have of themselves.

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Guest Post: Do More Candidate-Centric Electoral Systems Help Reduce Corruption?

Today’s guest post is from Rumilda Cañete-Straub, Josepa Miquel-Florensa, Stéphane Straub, and Karine Van der Straeten.

Although many people hope and expect that regular elections will help reduce corruption, this is not always the case: In many democracies, voters elect and reelect corrupt politicians. Why is this? Scholars have suggested that the efficacy of electoral democracy in reducing corruption depends on specific features of the electoral system, and the information available to voters. With respect to the electoral system, a common view is that electoral rules that give voters more formal control over individual candidates—such as primaries in majoritarian systems or open lists rather than closed lists in proportional representation (PR) systems—are more effective in reducing corruption. With respect to information, the conventional wisdom holds that providing voters with more information should help them identify corrupt politicians, thus increasing the chances that those politicians will be punished at the ballot box.

In our recent article, we present findings that challenge both aspects of this conventional wisdom. We focus on the comparison between closed-list PR system (in which voters vote only for a party, with the individual candidates elected depending on their position on the party’s list) and an open-list PR system in which voters can vote for any number of candidates on the list, without any constraint. Continue reading