Implicit Corruption in the Chinese Consumer Debt Industry? A Close Look at Recent Evidence

While many country’s bribery laws require an express quid pro quo—an agreement to exchange a specific benefit for a specific exercise of government power—in practice many corrupt relationships involve implicit quid pro quos, in which the private party provides something of value to government officials, and the government officials use their power to help their private benefactors, but there is never any express agreement, or even any direct connection between any individual official act and a particular benefit conferred by the private party. The context in which such implicit quid pro quos are most widely suspected and discussed is perhaps campaign finance in democracies, but such implicit quid pro quos can occur in many other contexts as well. It is often very difficult—not only for law enforcement agencies, but also for empirical researchers—to find sufficiently clear evidence of an implicit corrupt deal. Yet quantitative empirical researchers have been making important strides in using available data to detect evidence of hidden or implicit wrongdoing—an approach sometimes dubbed “forensic economics.”

A fascinating recent paper by Sumit Agarwal, Wenlan Qian, Amit Seru, and Jian Zhang (forthcoming in the Journal of Financial Economics) illustrates both the potential and limitations of this approach. The paper, entitled “Disguised Corruption: Evidence from Consumer Credit in China,” presents quantitative evidence of an implicit quid pro quo between a large Chinese bank and government officials who wield regulatory authority over the bank. The paper finds that the bank offers unusually favorable lending terms to government employees (the “quid”) and that in those provinces where this practice is more widespread, the bank receives more favorable treatment from governments (the “quo”). While this evidence alone cannot establish that there was an implicit exchange (the “pro”), the authors suggest that this is the most plausible explanation of the data.

The data is certainly susceptible to that interpretation, but there are other, more benign possibilities. I’ll first say a bit more about the main evidence the paper offers for an implicit quid pro quo, and then suggest (though not necessarily urge) a possible alternative explanation.

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Where the Real Blame for Letting Bridgegate Defendants Off Lies: Part II — the Congress

Anticorruption advocates roundly condemned the Supreme Court for its May 7 Bridgegate decision overturning two New Jersey officials’ corruption convictions for conduct even their lawyer admits was wrong (examples here, here, and here).  But as explained in a previous post on Bridgegate, so named because the case involved closing bridge entry ramps to create traffic jams, the Court is not to blame for the result.  The immediate cause was Bridgegate prosecutors pushing beyond the limits the Court has ruled current law sets on their power to police state and local corruption.

It is Congress, though, that bears the lion’s share of the blame for the outcome. Congress needs to clarify when state and local officials can be prosecuted under federal law for corruption.  Until it does, more Bridgegates, cases where the Court rebuffs federal prosecutors’ expansive view of their power to prosecute state and local corruption, are in store.  As with Bridgegate, the result will be that corrupt officials get off scot free while the American public is left to question their government’s commitment to fighting corruption. Continue reading

The Bribery Trial of Sitting Israeli Prime Minister Netanyahu Poses Unprecedented Challenges

The criminal trial of Israeli Prime Minister Netanyahu, on multiple corruption charges, opened yesterday, only ten days after the formation of a new government, and after years of police investigations, indictment procedures, and three rounds of early general elections. The trial is an unprecedented event in Israel, and one of the few examples anywhere in the world where a sitting head of government has stood trial on criminal charges in his own country. This situation poses unique challenges. On the one hand, the court must ensure that Netanyahu’s rights, as a criminal defendant, are respected. That said, though, some adjustments will have to be made to secure both the fairness of the trial and the integrity of Israeli executive and judicial branches, given that as the trial unfolds, Netanyahu will continue to serve as Prime Minister.

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Where the Real Blame for Letting Bridgegate Defendants Off Lies: Part I

The Supreme Court continues to bear the blame for two political operatives getting off scot free for an admitted blatant abuse of power: creating nightmarish traffic jams for residents of a small New Jersey town because its mayor had not endorsed their boss’ reelection as governor.  Though the record showed the stunt endangered the lives of some and inconvenienced thousands and their lawyer admitted it was an abuse their power as state officials to cause the jams, the Court acquitted them on all charges.  Its decision in the Bridgegate case, so named because the traffic jams were created by blocking two lanes of the bridge the residents used to commute to New York City, is indeed the immediate reason defendants escaped sanction.

But that ruling was the inevitable consequence of earlier decisions by the other branches of government.  For decades Congress has ignored the Court’s warning that the hodgepodge of federal laws used to prosecute state and local officials for corruption is Constitutionally infirm.  And for decades, and despite some spectacular earlier reversals by the Court, the Executive branch has continued to rely on these statutes to prosecute state and local corruption.

Those genuinely interested in fighting corruption need to stop denouncing the Court and focus their energies instead on these two branches of government.  Below is what they should demand of the Executive.  Part II of this post will explain what they should demand of Congress. Continue reading

Don’t Believe the Spin on the Mozambican Acquittal

The jury in the federal criminal trial in Brooklyn of  Jean Boustani acquitted him December 2 of charges arising from a scheme to pay Mozambican officials tens of millions of dollars in bribes in return for the government borrowing hundreds of millions of dollars to pay for ships it could not afford. No sooner was the verdict announced than Privinvest — Boustani’s employer, the supplier of the ships, and a major beneficiary of the scheme — crowed it had been completely vindicated.  Despite evidence produced at the trial, charges pending in Mozambique, and allegations in a civil action in the United Kingdom, Privinvest lawyers are telling the press the acquittal proves the company had no part of the scheme.  That it did not pay bribes to win the business.

If it were true the company paid no bribes, three Credit Suisse executives would not have pled guilty to accepting bribes from it in the same court where Boustani was acquitted. Nor would they have named its CEO Iskander Safa, CFO Najib Allam, and Boustani as bribe payers (here). Nor would a trial witness have explained that Government Exhibit 2758, an April 2014 e-mail from Boustani to Allam, is a list of bribes the company paid Mozambican officials.  A list that includes President Filipe Jacinto Nyusi (“Nuy” in the e-mail), former Finance Minister Manuel Chang (“Chopstick”), and former intelligence chief António Carlos do Rosário (“Ros”). (Complete decoded list here.)

No, the verdict of acquittal does not exonerate Privinvest.  Nor anyone else for that matter.  What it shows is two things.

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Can A “Fudgy” Adverb Save Trump From Impeachment?

For weeks President Trump’s defenders have claimed he did not demand Ukraine investigate the Bidens in return for approving the delivery of weapons to Ukraine. In legal terms, the argument was that there was no exchange of one for the other, no quid pro quo, the cornerstone of the crime of bribery.  That defense has now collapsed (here and here). The evidence that Trump sought a “quo,” a personal favor in the form of an investigation of the Bidens, in return for a “quid,” weapons, is overwhelming (here).  His defenders have thus now fallen back to a secondary defensive line: there was a quid pro quo but it was merely an “inappropriate” one. It was not, defenders insist, an impeachable quid pro quo.

Whether this new defense will carry the day remains to be seen.  No American president has ever faced impeachment for soliciting a bribe.  There is thus no standard jurors in a Trump impeachment trial, the 100 members of the United States Senate, can consult in deciding whether Trump’s attempt to use the power of the presidency to obtain a personal benefit is impeachable. But as Senators construct a standard, they might consider the one a 12-person jury of lay people in a criminal trial must use when a public servant is accused of soliciting a bribe. Continue reading

Will Congressional Republicans Hold Trump to the Standard to Which They Are Held?

It is no surprise House and Senate Republicans are finding it difficult to defend President Trump’s mixing political business with official business in his dealings with Ukraine. From the day they are elected, members are warned to keep the two separate lest they run afoul of the federal bribery law.  Nor should it be a surprise that President Trump would mix the two, for by his own admission, as a New York City real estate developer he frequently did.

House and Senate Ethics Committee Manuals both tell members “the federal bribery statute makes it a crime for a public official . . .  to ask for . . .  gifts, money, or other things of value in connection with the performance of official duties.”  The “connection” between the request and the duty performed need not be an explicit quid pro quo — contrary to what some Trump defenders say.  Were that the standard, as Justice Kennedy explained in a landmark case, an official could easily escape sanction by resort to “knowing winks and nods.” Continue reading

Memorandum of Conversation Between Presidents Trump and Zelensky UPDATED

America has unfortunately plunged into what is likely to be a long and divisive debate about corruption. Media reports of a conversation President Trump had July 25 with Ukrainian President Volodymyr Zelensky have swirled since allegations surfaced that President Trump had there asked President Zelensky to investigate former Vice President Biden for corruption.  In the hopes of ending speculation about what he said, earlier today President Trump released a memorandum recounting the call.  [Update: The controversy leading to release of the memorandum was sparked by reports an intelligence professional had filed a whistleblower complaint concerning President Trump and Ukraine.  That complaint, released the morning of September 2, is here].

Unfortunately, the release is likely only to fuel ever more nasty, partisan debate. One controversy certain to arise is the memorandum’s accuracy.  It is not a verbatim transcript of what the leaders said, a transcription of an audio recording of the call.  Rather, it represents what one or more staff huriedley scribbled down while the two spoke; later others reviewed it.  Did someone “scrub” more incriminating comments from the memo before its release?  Is there a better record of the call?  Will the person or persons who actually listened to the call come forward to testify to its accuracy?  Or contest the accuracy?

A more critical point of contention is whether what President Trump said during the call is on its face a crime under American law.  President Trump clearly asked President Zelensky to investigate former Vice President Biden for criminal activity.  The Federal Election Campaign Act makes it a crime for presidential candidates to receive contributions, defined as “anything of value,” from foreign citizens or governments. President Trump is a candidate for president in the 2020 election as is the former Vice President. Had Ukraine actually initiated an investigation of the Vice President, would that have been something of value under the election law?  If it would have been, was President Trump’s solicitation of such a contribution a violation of the law?  Or any other U.S. laws?

Is the fact that Mr. Biden is seeking the 2020 Democratic presidential nomination relevant to the inquiry?  That, were he to be the Democratic nominee, current polls show him decisively defeating President Trump?

Some reports allege President Trump personally held up critical military and economic assistance to the government of Ukraine, only releasing it under Congressional pressure.  That will surely be the bitterest bone of contention, for if he used a denial or delay in providing aid as leverage to force Ukraine to open an investigation, that would constitute attempted bribery under American law and thus strong grounds for impeachment and removal from office.

Was there such a threat?  As students of U.S. bribery law know, it need not have been overt; “a wink and a nod” suffices.   Expect a great deal of argument over “winks and nods,” with partisans seeing none opponents seeing them everywhere

The only bright spot in this very dismal chapter in American history is release of  memorandum of conversation.  It provides at least some uncontested facts upon which partisans can build their cases.  For those who have yet to read it, here it is Memorandum telephone conversation between Presidents Trump and Zelenskyy

“Passive Bribery”: Not a Trivial Abuse of Language At All

Yesterday Matthew wrote that using “passive bribery” to describe a public official’s acceptance of a bribe was an abuse of language.  His complaint: “passive” suggests a bribe taker is less culpable than a bribe payer: “’Passive bribery,’” he explained, “sounds less bad, and less serious, than ‘active bribery,’ even though most people would view the two parties to the bribe transaction as equally culpable.”

Calling bribe-taking “passive” is indeed an abuse of language. But it is not, as Matthew’s headline reads, “An Almost Entirely Trivial Complaint.” Nor is the abuse “No big deal” as he writes in the post.  To see why, consider two different “passive bribery” scenarios. Continue reading

An Almost Entirely Trivial Complaint About Terminology: Can We Please Retire the Term “Passive Bribery”?

Alright, alright, I know there’s so much important and serious going on in the anticorruption world, and the world in general, that I have to apologize right up front for the topic of this post, which is has virtually no importance to anything substantive. But I’ll post about it anyway, partly because it’s been bugging me, partly because right now I’m too burnt out to take up anything more weighty. Here’s today’s trivial terminological complaint:

The term “passive bribery.”

I don’t know when or how this happened, but in large segments of the anticorruption community, it’s become standard to refer to the act of requesting, demanding, or taking a bribe as “passive bribery”—which is contrasted with “active bribery,” defined as the act of promising, offering, or giving a bribe. This terminology has become so standard that it appears repeatedly in glossaries prepared by international organizations (see, for example, here and here) and leading anticorruption NGOs (see, for example, here and here), though to the best of my knowledge these terms aren’t actually used in any legal codes, nor in the UN Convention Against Corruption.

The problem is that describing the act of taking (or demanding) a bribe as “passive bribery” is both an abuse of language and potentially confusing or misleading. Continue reading