Guest Post: Italy’s Misguided, and Possibly Illegal, Repeal of the Abuse of Office Offense

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Today’s guest post is from Roberta De Paolis, a post doctoral fellow in Criminal Law at the Sant’Anna School of Advanced Studies of Pisa.

For nearly a hundred years, the Italian criminal code included an “abuse of office” offense. Public officials committed this crime when, in the course of performing their duties, they acted in a way that was otherwise unlawful or entailed a conflict of interest, and in so doing secured a monetary advantage to themselves and/or inflicted monetary damage on others. For example, if a public official rigged a public procurement auction, steering a government contract to a relative or friend, that public official would not only have violated the rules on competition procedures, but would also have committed the crime of abuse of office. But the crime could apply more broadly. For example, if a local official denied a citizen a building permit for self-interested reasons, the official may have committed the abuse-of-office crime.

On its face, the abuse of office offense seems like a potentially powerful anticorruption tool. But it had proved to be controversial. Many, including Justice Minister Carlo Nordio, claimed that the crime was too vague, and potentially too broad. For example, in many small Italian towns, many people—particularly at the elite level—know each other socially and often have family ties, and as a result many decisions that local politicians make could be characterized as helping their friends or relations or otherwise involving a conflict of interest. Consider a mayor who announces a tender for public construction project, and the best bid comes from an acquaintance of the mayor. If the city government accepts that bid, the local political opposition could report the decision to the authorities and assert that the mayor abused her office by favoring an acquaintance in the tender procedure. As a result, according to critics of the abuse-of-office offense, many local public officials were discouraged from implementing socially valuable public works projects, out of fear of ending up under criminal investigation. The critics also pointed out that, despite the large number of prosecutions for abuse of office, these prosecutions rarely produced convictions: the most up-to-date statistics report that about 5,000 criminal prosecutions for abuse of office resulted in only nine convictions. This is suggestive evidence that many of the investigations were meritless, and possibly politically motivated tools of harassment.

That, at least, is what critics of the law argued, and this past August, those criticisms carried the day: Parliament voted to repeal the abuse-of-office offense. But was that the right decision? Many experts say no. Notably, the President of Italy’s National Anti-Corruption Authority, Giuseppe Busia, asserted that repealing the abuse of office offense leads to impunity in cases of conflict of interest like favoritism in public competition or tenders. Similarly, a spokesman for the European Commission claimed that the repeal of this law “decriminalizes an important form of corruption and may have an impact on the effectiveness of the European fight against corruption.” (Indeed, it is worth noting that 25 of the 27 EU countries have criminal laws prohibiting abuse of office.) Supporters of the repeal respond that these concerns are overblown because other provisions of the criminal code, as well as Italian administrative law, still apply to the egregious cases. But that is not obviously true, and, worrisomely, the repeal of the criminal abuse of office offense has not been counterbalanced by the introduction of new administrative offenses to address the problematic conduct. Continue reading →

Breadwinner for Whom? Lessons from Nigeria’s Cassava Bread Initiative

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Nigeria is already the world’s largest producer of cassava, and the country is well positioned to be world’s largest cassava processor in the world, as well. If Nigeria could strengthen its capacity to produce, process, and utilize more cassava flour in its bread, it would save billions of dollars annually on wheat flour imports, create millions of jobs, and empower its farmers and agricultural sector. Yet when Nigeria has tried to achieve this goal—principally through a program called the Cassava Bread Initiative (CBI)—it has failed, and the principal reason for this failure is corruption.

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How State Prosecutors Can Fill the Gap in U.S. Anticorruption Enforcement

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It’s getting harder to prosecute federal corruption crimes in the United States. In a recent case called Snyder v. United States, the U.S. Supreme Court narrowed the scope of a key anti-bribery law. And this decision is only the latest in a series of cases over the past decade that have limited the reach of federal prosecutors in going after state and local public corruption. While Congress could always enact legislation to expand the scope of federal anticorruption laws, significant legislative action seems unlikely anytime soon.

Given the increasing difficulty of corruption prosecution at the federal level, could state prosecutors step in to pursue cases now beyond the reach of federal law enforcement? After all, federal and state prosecutors share partly overlapping responsibilities for anticorruption enforcement in the United States. Although the Supreme Court has increasingly rejected broad theories of federal criminal liability especially in the context of state and local corruption, the Supreme Court’s narrow readings of federal anticorruption laws pose no barrier to cases brought by state prosecutors enforcing state law (see, for example, here and here). To be sure, federal prosecutors have traditionally played a substantial role in rooting out state and local government corruption, and many remain skeptical that state prosecutors can take up the anticorruption role that federal prosecutors have long played. Yet while state prosecutions might not be a perfect substitute for robust federal anticorruption enforcement, there are compelling reasons to think that state prosecutors could meaningfully fill the gap that the Supreme Court has opened up in the U.S. anticorruption system.

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Will America’s Anticorruption NGOs Hold Trump II to Account?

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If the trend Daniel Schuman identifies in “Open-Government Nonprofits Are Dying Off Just When They’re Needed Most,” the answer is a clear if frightening NO (here). Schuman, Executive Director of the American Governance Institute, ticks of a list of U.S. watchdogs closing their doors or drastically cutting staff thanks to multiple funding crises.

Those now on the block include: OpenSecrets, which for years has shown which politicians get money from what special interests; OMB Watch, a pioneer in unearthing hard-to-find data on government spending; and the Center for Public Integrity, the scourge of those officials who have never seen an ethical line they can’t cross.

Why, just when more eyes are needed on Trump and cronies, are those with 20-20 vision finding it so hard to raise money? Schulman puts it off to the polarization now infecting the American body politic. The foundations and high-net-worth individuals that have traditionally backed organizations dedicated to “public-informing, community-building work” have, he writes, become “auxiliaries for the parties in their trench warfare over political power.”

Bad enough the funding drought coincides with the return of an Administration likely to make Grant’s second term seem a model of probity. Many of those on the ropes have done much to advance the global war on corruption, from serving as models for citizens of other nations to providing critical technical assistance to anticorruption NGOs around the globe. The fight against corruption in the U.S. is entering a critical phase with the outcome likely to affect the fight in other nations. The stakes couldn’t be higher. Will donors please reconsider their decisions?

Thanks to TheBulwark, an indispensable source for what’s happening in the U.S., for publishing Schuman’s story.

Anticorruption and The Fourth Estate: Lessons from the Vatican “Trial of the Century”

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In December 2023, Cardinal Becciu—once considered a leading candidate for the papacy—became one of several defendants sentenced to prison by a Vatican tribunal for financial crimes against the Church. The case, dubbed the Vatican “trial of the century,” is a high-profile example of Pope Francis’ fight against corruption within the Church, one of his top priorities since taking charge. Despite the convictions, the trial embroiled the Vatican in controversy about the fairness of its legal system and the Pope’s allegedly improper involvement in the investigation. There is extensive debate as to whether the Pope’s actions were justified.

What is less open to debate, however, is that international press coverage was highly critical of the Vatican. Major news outlets picked up and ran with defendants’ claims that certain papal actions amounted to “unacceptable abuses” and “invalidated the entire justice of the trial.” For example, the New York Times described the trial as “rais[ing] as many questions about the Vatican’s judicial system, the competence of its officials and the pope’s style of governance as it did about [the] crime.” The Washington Post said the Vatican emerged from the trial “worse for wear, with new questions raised about the effectiveness and fairness of its legal system.” The Associated Press’ (AP) reporting, which is reproduced in publications across the globe, is particularly worth highlighting. In an article titled “The First Outside Legal Analyses of Vatican’s ‘Trial of the Century’ Are In, And They’re Critical,” the AP featured Professor Geraldina Boni’s claims that the Pope’s actions “represented a clear violation of the right to a fair trial,” and raised the prospect of a “violation of divine law to which even the pope is subject.” These and other news articles included rebuttals from Vatican officials, but those rebuttals mostly consisted of conclusory platitudes, such as the claim that the trial was carried out “in full respect of the guarantees for the suspects,” or condemnation of the criticisms as “on the level of international heresy.”

As earlier posts on this blog have highlighted, because public opinion of a government’s anticorruption work is an important factor in whether the work succeeds, public relations is a “crucial tool” in fighting corruption. Negative media coverage is a familiar issue to those in the anticorruption field. Targets of a corruption probe will often do their best to delegitimize it. Common tactics include casting the probe as a politically motivated witch-hunt, or, as here, denouncing the legitimacy of the process as an unfair, abusive violation of human rights. How anticorruption authorities respond to these accusations may play a significant role in the perception and legitimacy of the prosecutions. The consistently negative press coverage of the Vatican’s prosecution of these cases suggests the Vatican made mistakes in its public relations strategy. Is that correct? And if so, what might the explanation be?

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Jailing Peru’s Presidents: Why Peru’s Recent Crackdown Isn’t Curbing Corruption

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Peru’s specially made prison for housing disgraced former presidents is full. With an official capacity of two, last year’s extradition of ex-President Pedro Castillo from the United States forced the Barbadillo prison to expand to include three former presidents. The number dropped back down to two following a presidential pardon for ex-President Alberto Fujimori, who passed away shortly after his release. The current prison population is not an anomaly: seven of the eight Peruvian presidents since 1990 are either in jail, have been in jail, or have faced a detention order. Each of them faced corruption charges for graft during their tenure as a public official.

The fact that so many ex-presidents have been incarcerated might be taken as a sign of progress. As Rosa María Palacios, a Peruvian lawyer and political commentator, wryly observed, “In Latin America, people envy us. Many people abroad say: ‘At least you get them in jail.’” Yet despite the fact that Peru has engaged in a crackdown on presidential corruption that is unparalleled among Latin American countries, Peru’s current president is under investigation for “illicit enrichment,” Peru’s ranking on the Corruption Perceptions Index (CPI) remains low, and 81% of Peruvian citizens believing that corruption has increased in the past five years. 

Of course, nobody expects that prosecuting high-level government officials, even presidents, will solve the corruption problem. But one might expect that demonstrating a willingness to do what so many other systems will not do—go after the most powerful political figures in the country—would at least create a sense of optimism and momentum in the anticorruption fight. Yet this does not seem to have happened in Peru. Why not?

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Corruption as a National Security Priority: How Will it Shape U.S. Policy in Fragile States?

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Corruption has increasingly been framed as a national security priority in United States policy. This is perhaps most readily apparent in the National Security Council’s 2023 U.S. Strategy on Countering Corruption, but it is also manifest in several major pieces of legislation. One such legislative initiative is the 2019 Global Fragility Act (GFA), which tasked the State Department, Department of Defense (DoD), and US Agency for International Development (USAID) with developing a coordinated ten-year strategy for preventing conflict in fragile states. This past March, the State Department published its inaugural Strategy for Preventing Conflict in four pilot countries—Libya, Mozambique, Haiti, and Papua New Guinea—and one region, Coastal West Africa (encompassing Guinea, Cote D’Ivoire, Ghana, Togo, and Benin). Each of these strategy documents center anticorruption reform as a means to improve state legitimacy and reduce the risk of conflict, but they take quite different approaches to addressing the problem of corruption within a national security framework. Continue reading →

Guest Post: Embracing and Enhancing IMF’s Governance Conditionalities To Fight Corruption

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Today’s guest post is from Beauty Emefa Narteh, the Executive Secretary at the Ghana Anti-Corruption Coalition, and Leslie Tsai, General Counsel at the Chandler Foundation and lead for the organization’s efforts to support good governance, increased transparency and accountability, and robust international and national integrity ecosystems

 IMF bailouts of countries in financial distress often come with unpopular strings attached—strict conditionalities related to fiscal policy that often force countries to make deep spending cuts and to increase taxes on food, healthcare, and fuel. These painful austerity measures have often proved counterproductive, plunging countries into recession and sparking anti-government riots and protests.

But while IMF conditionalities have gotten a deservedly bad reputation, a relatively new category of IMF conditionalities, focused on governance reforms, presents the 3.3 billion people living in countries swept up in the current global debt crisis with something precious: hope and the possibility of a true pathway to financial stability. The IMF’s expanded the use of governance-related conditions is a based on a belated acknowledgement of a point that civil society leaders and anticorruption champions around the world have long emphasized: that governance issues are as macroeconomically critical as fiscal policy, and that when corruption bloats and distorts government spending, a narrow focus on economic policy alone will be insufficient to pull countries out of chronic economic crisis. Notably, the IMF’s governance conditionalities are far more popular among ordinary citizens than their standard austerity measures. This is not only because corruption is widely seen as a scourge that most heavily burdens the poor, but also because anticorruption systems that protect government coffers can blunt the need for cuts to social spending over the long term.

The IMF’s governance conditionalities provide a powerful if imperfect tool for savvy civil society leaders who have long advocated for increased government accountability and stronger anticorruption systems. When governments are in discussions with the IMF about bailouts, domestic civil society groups in those countries can use this opportunity to press for much-needed progress on anticorruption. Continue reading →

Twelve Years Later, Did China’s Sweeping Anticorruption Campaign Deliver?

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When Xi Jinping rose to power as General Secretary of the Chinese Communist Party in 2012, he kicked off a sweeping campaign to eliminate corruption across government. Xi vowed to discipline both “tigers” and “flies” — high-ranking party leaders and low-level bureaucrats — and warned officials of the risk that corruption posed to the government’s legitimacy. Official efforts to address corruption were hardly new in China, but Xi’s anticorruption drive was notable for its aggressive enforcement and willingness to pursue even the most powerful. Xi empowered and expanded the Central Commission for Discipline Inspection (CCDI), the highest supervisory organ of the party, while also reorganizing the government to create a new National Supervisory Commission (NSC) that would unify the state’s anticorruption enforcement. Xi’s enforcers employed harsh rhetoric, seeking to deter corruption by strict enforcement. Twelve years later, millions of officials have been disciplined or purged, including top party figures such as former Chongqing party chief Bo Xilai and former security minister Zhou Yongkang. Under China’s draconian criminal justice system, such defendants stand little chance. And private individuals have not been spared, with prominent industry and business leaders caught up in bribery and corruption investigations. On top of this sweeping crackdown, Xi has taken steps to permanently institutionalize anticorruption across the party and government.

In many respects, Xi has done much of what anticorruption practitioners advocate for: He has prioritized anticorruption at the highest level of government, increased enforcement dramatically, and reformed both government and political institutions. There are signs that his anticorruption efforts have paid off. Public perception of government has improved, with officials wary of ostentatious consumption of luxury goods and other openly corrupt behavior. Xi himself declared overwhelming victory in the fight against corruption in early 2024.

Yet despite the impressive numbers, Xi’s campaign has failed to address the underlying dynamics driving corruption in China. Indeed, the fact that anticorruption authorities continue to catch record-breaking numbers of corrupt officials at all levels of government may be a warning sign, not a marker of success. While Xi’s campaign is viewed in some quarters as a model for top-down, government-led anticorruption campaigns, China’s experience over the last dozen years also highlights the inherent limitations of that approach.

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The Fight Against Corruption Is at Stake in Milan

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That’s how former French magistrate and renowned corruption fighter Eva Joly sees current developments in Italy. Two prosecutors there face prison for actions taken during the bribery trial of Italy’s largest company.  Writing in the Argentine opinion journal Clarín, Mme. Joly explains that the charges have nothing to do with their conduct and everything to do with a justice system where score-settling and the protection of Italian companies has supplanted the goal of truth and justice (Spanish original here; English translation here).

The saga begins with prosecutors Fabio de Pasquale and Sergio Spadaro opening an investigation into allegations oil giants Shell and Eni paid a $1.1 billion bribe for rights to Nigerian oil field OPL 245. With overwhelming evidence of wrongdoing on the public record (here, here), the two expected they would be trying a cut-and-dried case of foreign bribery.

Even before the trial began, however, it was clear that that was not to be. The first signs: revelations of ties between the chief trial judge and a lawyer close to ENI together with a surprising lack of interest by the Italian press in the largest bribery scandal on record. During the trial, a string of rulings highly favorable to the defense heightened suspicions the fix was in. But the acquittal still came as a surprise given the massive evidence presented coupled with the flimsy reasoning the court advanced to justify its verdict (here).

Adding to the surprise was the Italian media’s new-found interest in the case. Stories claiming the trial had been a waste of public money and questioning what Italian prosecutors were doing prosecuting Italian companies for bribing foreign officials began appearing in several outlets, the same ones where ENI was a major ad buyer.

Not to risk an appellate court would undo their handy work, those behind the trial’s outcome saw to it that the state counsel appointed to appeal the acquittal was one whose public comments on the case tracked the criticisms in the press (here). She then took the extraordinary step of refusing to pursue an appeal, meaning the trial court’s acquittal remains the final word.

Those responsible for quashing one case against ENI apparently feared there was always a risk some other pesky prosecutor didn’t get the message. Hence the orchestration of the conviction of de Pasquale and Spadaro for failing to disclose exculpatory information to the defense, a case with no precedent in Italian law based on a factual claim belied by the trial record.

If the convictions are not overturned on appeal, it’s not only the future of two talented magistrates that will suffer. As Mme. Joly says, the credibility of the Italian judicial system and the future of the fight against corruption, in Italy and far beyond, will suffer as well.