Tag Archives: law enforcement

Narrowing the Scope of Brazil’s Administrative Improbity Law: Why the New Limits Will Strengthen, Not Weaken, the Law’s Efficacy

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Brazil’s 1992 Administrative Improbity Law, which authorized severe sanctions on government agents who commit “acts against the public administration,” was the first Brazilian statute specifically targeted at government corruption. Last year, Brazil adopted extensive amendments to this law, many of which were controversial. In a recent post, I criticized the amendment that reduced the number of institutions responsible for enforcing the Improbity Law. But other controversial amendments to the law are, in my view, positive developments. In particular, I want to defend two other amendments that critics have asserted weaken the law:

  • First, under the original version of the Improbity Law, a public official could be sanctioned for negligent behavior that caused damage to the public treasury. Under the amended version of the law, only intentional acts can be considered administrative improbity punishable under this statute.
  • Second, the original version of the law listed ten forms of administrative misconduct that would constitute “violations of the principles of public administration,” but, importantly, that list was not exclusive. Rather, the listed forms of misconduct were presented only as examples. This meant that law enforcers could, and often did, bring an action under the Improbity Law for conduct that, in the enforcer’s view, violated a “principle of public administration,” such as morality and equity, even if the particular form of alleged improbity was not included as one of the specifically listed forms of misconduct in the statute. The amended law constrains enforcement discretion by establishing a well-defined and restricted list of acts that qualify as violations of the principles of public administration.

Critics, including many anticorruption advocates, assert that these changes unduly narrow the scope of the law, thereby undermining one of Brazil’s most important anticorruption instruments. These concerns, while understandable, are misplaced: Both of the above amendments improve the law by ensuring that it is administered fairly and used to target serious corrupt acts, rather than being wielded as a political weapon to punish partisan adversaries for good-faith mistakes.

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The End of Institutional Multiplicity: A Drawback in the New Administrative Improbity Law

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Brazil’s Administrative Improbity Law is one of the cornerstones of the country’s anticorruption framework. The law imposes administrative and civil liability on public officials and political agents for illicit enrichment, damage to the treasury, and acts against the principles of public administration. Before its enactment in 1992, these forms of misconduct were only punishable under criminal law, which imposes a much more demanding evidentiary standard. The enactment of the Administrative Improbity Law thus played a valuable role in enabling the government to hold corrupt actors liable in those situations where the evidence of corruption, though strong, was not enough to establish proof beyond a reasonable doubt.

This past October, the Brazilian government enacted significant amendments to the Administrative Improbity Law. Some of these changes were welcome, particularly those that clarified vague provisions and attempted to speed up the process. (Brazilian courts have taken on average six years to adjudicate administrative improbity claims.) But another change is much less welcome: The amendments to the law reduced the number of institutions that can file a suit for violations of the law. Under the original version of the law, a suit could be initiated either by the Public Prosecution Office (an autonomous body) or by the government entity that was harmed by the corrupt act (the federal Attorney General’s Office in the case of acts that harm the national government, and the state or municipal authorities in the case of acts that harmed subnational government entities). This arrangement is a form of what Brazilian scholars typically refer to as institutional multiplicity—an arrangement where multiple institutions have overlapping authority to enforce legal provisions. Institutional multiplicity is a key feature of Brazil’s anticorruption framework. The new version of the Administrative Improbity Law scraps this multiplicity, at least in this context, by giving the Public Prosecution Office the exclusive right to file administrative improbity suits.

This is a mistake.

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Rethinking Presidential Obstruction of Justice

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One of the greatest powers that can be granted to a national chief executive is jurisdiction over law enforcement. From the French President’s authority over the Ministry of Justice to the American President’s authority over the Department of Justice (DOJ), a number of states entrust their chief executive with significant control over the nation’s top law enforcement bodies. While these oversight powers are often exercised to achieve legitimate aims, problems arise when an executive uses his authority to shield himself or his associates from legal accountability. Such misuse of the chief executive’s authority over law enforcement is itself corrupt—an abuse of the president or prime minister’s public power to protect his private interests—and can foster the culture of impunity that allows other forms of corruption to thrive. But policing this sort of improper interference is challenging.

One possible limit on corrupt presidential interference with law enforcement is the fact that such interference may itself be a crime. In the United States, for example, it is a felony—known as “obstruction of justice”—for a government official to “corruptly” use the power of his or her office to “obstruct” a “pending or contemplated official proceeding” (such as a trial or investigation). But as Special Counsel Robert Mueller’s investigation into former President Donald Trump made clear, the current version of the obstruction of justice statute may be inadequate to check this form of presidential corruption.

For starters, it’s not clear whether the obstruction of justice statute, as currently written, even applies to a sitting president. (Scholars have disagreed on this point, with some arguing that the current statute does not apply to the president—see here and here—and others arguing to the contrary that it does.) That problem, though, has an easy fix: As Bob Bauer and Jack Goldsmith’s recent book has argued, Congress can and should amend the statute to state explicitly that a sitting president can commit obstruction of justice. Another difficulty is that, as Robert Mueller’s report stressed, under current DOJ policy, a sitting president cannot be criminally indicted. This too could be changed. The deeper and harder problem is that because in the U.S. system the president may legitimately seek to influence the conduct of criminal investigations, and because the president’s motives may be ambiguous or mixed, it is very hard, perhaps impossible, to prove that the president’s actions with respect to a pending or contemplated official proceedings were “corrupt.” Take President Trump’s decision to fire FBI Director James Comey. The Mueller Report concludes that President Trump fired Director Comey to save his presidency (which seems like a corrupt motive). Yet some claim that President Trump also had other, more legitimate reasons for firing Director Comey, including concerns about partisan bias in Comey’s investigations. And even if one contests that claim in this particular case, it’s not hard to imagine a situation in which a President moved to impede an investigation that both threatened the president’s personal interests and that the President thought was unwise or improper.

How should the law treat such cases, if the goal is to ensure that a U.S. President is not above the law, while simultaneously giving the President appropriate latitude oversee federal law enforcement?

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

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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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New Blog on Police Corruption and Accountability

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These past several weeks, protests in the United States and around the world have brought much-needed scrutiny to the problem of police misconduct. While the main focus of attention has rightly been on issues related to systemic racism and police violence, rather than police corruption (narrowly defined), concerns about police misconduct relate to important themes that the anticorruption community has long emphasized. Indeed, as I discussed in my post a couple weeks back, there are intriguing and troubling similarities in the organizational-cultural characteristics associated with corrupt firms and abusive police departments. And perhaps some of the lessons learned from institutional reform strategies designed to combat corruption can help inform approaches to reforming law enforcement agencies more generally.

I’m not the right person to lead that conversation, since I lack the relevant expertise, but I’m happy to announce a new addition to the blogosphere that will focus on these issues. The CurbingCorruption project (which I’ve mentioned earlier), which already featured a section on fighting corruption in the law enforcement sector, has launched a new blog called Trusted Policing. According to the official description:

Achieving Trusted Policing requires changes to laws and to police institutional practices to stop corruption, brutality, racism and harassment. It requires leadership of change not only from protesters but also from those in positions of responsibility – the police themselves, elected officials, public officials, whether in government, law enforcement agencies – and those who analyse and live the problems – academics, not-for-profit organisations, grass-roots reformers, police committees. The purpose of this blog is to contribute to one small part of this massive improvement challenge: to serve as a source and a repository for good experience and constructive proposals for police improvement from around the world.

The blog is brand new and only has a handful of posts so far, but those posts are quite interesting, and I think this may be a useful forum for those interesting in engaging in dialogue at the intersection of anticorruption reform and policing reform more generally.

Fighting Corruption in U.S. Civil Asset Forfeiture Requires State-by-State Reforms

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Civil asset forfeiture is a judicial process through which law enforcement officials seize assets belonging to a person suspected of a crime. To be subject to forfeit, the assets in question must be either the proceeds of crime or were used to further that criminal activity, but in many jurisdictions, civil asset forfeiture does not require a criminal conviction, or even the formal filing of criminal charges, and the typical legal threshold is probable cause that the seized property is connected to criminal activity, rather than the “beyond a reasonable doubt” standard generally required for a criminal conviction.

In the international context, civil asset forfeiture is an integral component in the battle against corruption. Empowering law enforcement agencies to seize ill-gotten gains, without the need to first secure a criminal conviction, is one of the most effective methods of punishing corrupt actors and depriving them of the proceeds of their crimes. But civil asset forfeiture is not limited to seizing the proceeds of grand corruption, and in the United States, the civil asset forfeiture system, particularly at the state and local level, has itself has become a significant vector for corruption, albeit on a much smaller scale, with local officials taking advantage of lax oversight to use seized funds for their own personal benefit. For example, in March 2020, the Michigan State Attorney General’s Office brought charges against Macomb County Prosecutor Eric Smith, alleging that Smith and other county officials had misused forfeiture funds for things like personal home improvements (including a security system for Smith’s house and garden benches for several other employee’s homes), parties at country clubs, and campaign expenditures. Smith is far from the only public official accused of corruption relating to forfeiture funds. To take just a few other examples: State revenue investigators in Georgia used millions in forfeited assets to purchase travel and trinkets like engraved firearms; police officers in Hunt County, Texas awarded themselves personal bonuses of up to $26,000 from forfeiture accounts; and the District Attorney in Lancaster County, Pennsylvania leased a new personal car with forfeiture funds.

To be clear, there are concerns about the civil asset forfeiture system in the United States that run much deeper than the misappropriation of funds. Critics have vigorously attacked both the legal underpinnings of the civil forfeiture system as it currently exists in the U.S., as well the system’s implementation. But for the purposes of this post I want to bracket those larger issues to focus on the question of why the civil forfeiture systems at the state and local level in the United States pose especially high risks of corrupt misappropriation, and what might be done about this (assuming that the civil forfeiture system is here to stay, at least in the short term).

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Are There Common Features of Dysfunctional Organizational Cultures? Corruption and Police Brutality

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For the second time in the last several months, I’m finding it extremely difficult to blog about corruption due to a more urgent crisis. A few months ago, it was the Covid-19 pandemic, which is still very much with us. But now, in addition to the ongoing public health emergency, my home country (the United States) is in the midst of widespread social and political unrest triggered by the murder of an unarmed black citizen at the hands of police officers, as well as several other similar incidents. The underlying problems—systemic racism and misconduct by law enforcement agencies—are, sad to say, longstanding problems with deep roots. But the protests have given them new urgency and salience. And while there have been instances of rioting and looting—acts that the vast majority of peaceful protestors have roundly condemned—we have also seen what can only be described as a grossly disproportionate response by far too many law enforcement agencies and officers. In multiple cases, police have used unnecessary force not only against rioters and looters, but against peaceful protestors and members of the media who clearly identified themselves as such. And multiple senior elected officials, including President Trump and Senator Tom Cotton, have advocated the use of military force to suppress what they would characterize as civil unrest.

Suffice it to say that, given all this, it’s hard for me to think of something interesting or worthwhile to say about global corruption. But as I’ve been doing more to educate myself about the root causes of police misconduct (a mild term for a category that includes, among other things, brutality and racially discriminatory enforcement), I’ve noticed some intriguing similarities to some of the prevailing theories regarding the roots of organizational corruption (in both government agencies, including but not limited to police departments, and in private firms). Perhaps this shouldn’t be so surprising, because in both cases the ultimate issue concerns the reasons for widespread rule-breaking within an organization. To be clear, I don’t want to overstate the similarities, either with respect to the severity of the misconduct (I condemn bribery as strongly as anyone, but I wouldn’t dream of equating it with systemic racism or police brutality) or with respect to all of the causes and characteristics. I should also emphasize that I’m by no means an expert in police misconduct, and I suspect that many of my observations here will have already been made, or possibly already refuted, in the existing research literature with which I am not yet familiar. With those caveats, let me highlight some potentially intriguing similarities between the characteristics of police departments prone to racism and violence, on the one hand, and firms or divisions that engage in bribery, embezzlement, and other forms of financial malfeasance. These similarities may suggest some common features of ethically dysfunctional organizations. Continue reading →

The Independence of U.S. Law Enforcement is Under Attack. Here’s What Congress Can Do About It.

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The politicization of the institutions of justice, particularly those associated with criminal law enforcement, is one of the greatest threats to the rule of law and the integrity of government. Corrupt leaders in democracies and autocracies alike seek to undermine any check on their power, thus ensuring impunity for themselves and their allies, and may also try to weaponize criminal investigations to harass and discredit political opponents. For many years, most Americans viewed this sort of threat to the integrity of the institutions of justice as something that only happened abroad, or in the distant past. Not so anymore. Under the Trump Administration, the corruption and politicization of law enforcement institutions is a significant threat to American democracy.

That President Trump lacks respect for the independence and integrity of law enforcement has been evident for some time, at least since Trump fired FBI Director James Comey. (Trump dismissed Comey in part to the FBI’s investigation into potential collusion between Trump’s campaign associates and Russia during the 2016 election, and in part because Comey wouldn’t pledge his personal loyalty to the president.) In the last month, the situation appears to be getting even worse. As has been widely reported in the media, President Trump publicly criticized the Department of Justice (DOJ) for seeking a high sentence in the case of Trump associate Roger Stone; Attorney General Bill Barr claimed that President Trump didn’t issue any specific instructions regarding the case (and complained about the President’s tweeting), but Barr nonetheless recommended a much lower sentence that the DOJ’s own prosecutors had originally requested. Barr recently made the highly unusual decision to install an outside prosecutor to oversee the case against President Trump’s former National Security Advisor Michael Flynn. In another troubling move that didn’t get as much press attention, in early February Barr issued a memo saying that any FBI investigations into 2020 candidates or their campaigns would require the Attorney General’s approval.

Trump has asserted that he had the legal right, as President, to intervene in criminal cases. This is a contested claim, to say the least. Some argue that, under the U.S. Constitution, the President has ultimate control not only over general DOJ policy, but over decision-making in individual criminal prosecutions. However, others assert that this is not so, and that the Constitution actually imposes certain limits the President’s control over individual prosecutions—most importantly, that the President cannot seek to affect a criminal case out of corrupt or self-interested motivations.

Putting the legal debate to one side for now, and assuming that Congress—if not now, then at some point in the future—would like to establish new safeguards to insulate the DOJ and FBI from the corrupting influence of an unscrupulous president, what might Congress do? I suggest three steps that Congress might take:

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The Alleged Police Misconduct in the Netanyahu Corruption Investigations Illustrates Why Police Should Err on the Side of Caution

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In corruption investigations, witness testimony is often crucial. After all, corrupt acts usually take place in secret, and the parties involved rarely leave behind records documenting their illegal deeds. It should therefore come as no surprise that an essential part of the corruption investigations into Israeli Prime Minister Benjamin Netanyahu has been the law enforcement authorities’ attempt to obtain incriminating testimony from those with (allegedly) first-hand knowledge of the corrupt actions, and to turn some of them into “state’s witnesses” (defined by Israeli law as “an accomplice who testifies on behalf of the prosecution after a benefit has been given or promised [to] him [or her],” usually in the form of immunity from prosecution or other alleviations). These efforts have met with some success (see here, here, and here).

However, according to Israeli news outlets whose reporters have gotten access to leaked police transcripts, the Netanyahu investigators may have gone too far. These transcripts suggest that police investigators tried to convince two key witnesses, who themselves were suspected of involvement in the corrupt schemes, to replace their defense attorneys – apparently because these defense attorneys had been advising their clients not to sign a state’s witness agreement (see here and here). (In Israel, defense attorneys are not present in the interrogation room, as suspects do not have a right to have their lawyers present during an interrogation.) One of the witnesses did indeed hire a new attorney and signed a state’s witness agreement, though we can’t be sure if the police investigators’ “suggestion” that he do so was the reason. If the police did pressure these suspects to fire their lawyers, it would be illegal, as Israel’s Supreme Court has held that police may not attempt to interfere with a suspect’s relationship with, or trust in, her attorney. In addition, the transcripts suggest that the police may have illegitimately pressured one of the witnesses during his arrest, threatening that lack of cooperation might result in negative consequences to him and others, and employing highly controversial interrogation tactics (see here, here, and here). At this stage, we do not yet know for sure what actually transpired, and Israel’s Attorney General has ordered that the claims of police misconduct be investigated.

The leaked transcripts and the allegations of severe police misconduct have generally been greeted with wide public criticism that transcended political boundaries. Prime Minister Netanyahu’s supporters and party members, including the Minister of Justice, have (unsurprisingly) been most critical, arguing that the police’s actions offer more proof of Netanyahu’s “persecution” by law enforcement authorities, a claim that has been promoted by Netanyahu almost since the beginning of his investigations (see here and here). Putting that harsh (and unproven) last claim to one side, it’s definitely the case that police investigators have been zealous in their pursuit of Netanyahu and his alleged co-conspirators, and the police may have been, at the very least, pushing the boundaries of what the law allows. This, in my view, is a mistake. To be clear, I do not mean to argue simply that the police should not break the law. That is true, but not many people would claim that the police should disregard the law when fighting corruption. But there’s another view out there, espoused by a considerable number of “tough on corruption” proponents, that law enforcement authorities should “push the envelope” as much as possible, doing everything they can even if their actions are sometimes to be deemed illegal by courts. According to this view, there is no place for softness in the interrogation room, and the police sometimes need to be willing to operate right at the edge of what the law will permit. It is this attitude that I want to argue against.

And this is not only because we should care about the rights of suspects and the fairness of criminal investigations. Indeed, “tough on corruption” proponents ought to worry the most about forms of police aggressiveness that come close to, and may cross, the line into police misconduct. In the Netanyahu case, to stick with that example, the police investigators’ alleged overreach may also prove to be counterproductive to anticorruption efforts, not only putting the investigation in jeopardy but producing long-term adverse consequences for effective anticorruption law enforcement. From the perspective of anticorruption policy, there are a few practical reasons why the police, while investigating allegations of corruption, should fully respect the rights of witnesses, and err on the side of caution: Continue reading →

Amazonia Is Burning. Corruption Is One of the Reasons.

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Amazonia is the largest tropical rainforest in the world, spread over nine South American countries (Brazil, Bolivia, Colombia, Ecuador, Guyana, French Guyana, Peru, Surinam, and Venezuela), with approximately 60% of the forest (over four million square kilometers) located in in the north of Brazil. Brazilian Amazonia is home to around 45,000 different plant and animal species. This rainforest is also crucial to the global environment, especially with respect to climate change. During the past several months, an increase in the number and extent of forest fires in Brazilian Amazonia has triggered great concern, much of it focused on whether the Bolsonaro Administration’s policies are partly to blame for the widespread fires. While that conversation is no doubt important, it is also crucial to recognize that environmental crimes in Amazonia—including those related to the fires—are in part the product of widespread corruption, and that addressing Amazonia’s environmental crisis will require addressing Brazil’s governance crisis as well.

To understand how and why corruption is contributing to the destruction of the Amazon rainforest, a bit of background is in order. The greatest environmental threats in this region are the illegal harvesting of timber and the illegal clearing of land (often through burning) to prepare the land for commercial use for agriculture and livestock. (Between 70% and 80% of the deforested area in Amazonia has been used to create pasture for breeding cattle to produce meat for domestic and international consumption.) To be sure, Brazil has laws in place to protect Amazonia from over-exploitation and other forms of environmental damage. About 80% of the land in Amazonia is publicly owned; on this public land, the forest may not be exploited or burned. The remaining 20% of Amazonia is private land owned by individuals or corporations; even for this privately owned land, Brazilian law requires that the owners keep between 50% and 80% of the area intact and unexploited. The Brazilian government is responsible for enforcing these rules and for regulating and overseeing the extraction, transportation, and commercialization of timber from Amazonia. The regulatory system involves government approval of forest management plans, the issuance of permits for timber harvesting and land clearing, and the tracking of timber to ensure that it was not illegally removed from public lands or from the protected areas of private lands.

That’s how it’s supposed to work. But in practice, private companies collude with corrupt public servants—forest wardens, police officers, and others—to evade these rules. As a result, substantial quantities of timber are illegally extracted from public lands and protected private areas, and agricultural and livestock interests illegally burn and clear irreplaceable forests. The corrupted public servants not only turn a blind eye to these environmental crimes, but they also warn the infringers about possible inspections by other agents.

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