Tag Archives: snyder v. united states

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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The U.S. Congress Must (and Can) Right the Supreme Court’s Wrongs

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This past June, in a case called Snyder v. United States, the U.S. Supreme Court dealt another blow to federal anticorruption law. The defendant in Snyder was a former mayor of an Indiana town. During his time as mayor, he helped steer a city contract to a certain company, and that company subsequently paid him $13,000 in “consulting fees.” He was convicted under a federal statute, 18 U.S.C. § 666, which makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] …or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” federally funded program. The question in the case was whether this statute prohibits so-called “gratuities”—payments that are corruptly made to a government official in recognition of action that an official has taken or has committed to take, but without evidence that the promise of the payment was what induced the official to take that act. The Court held that § 666 does not prohibit gratuities. In other words, as long as there is no agreement beforehand, the Court held that § 666 allows people or businesses to reward their state and local officials for favorable government action. In so holding, the Supreme Court has in effect provided a blueprint for using money, gifts, and other material incentives to influence state and local government.

The Court’s Snyder decision is yet another in a string of recent cases that have undermined and impeded federal anticorruption prosecutions in the United States—a string that includes McDonnell v. United States, Kelly v. United States, and Percoco v. United States. These decisions have been criticized—often fairly—for their narrow, crabbed reading of the relevant statutes. But it is a bit too easy to make the Court the sole villain of the story. As the Court itself has emphasized, it is Congress’s responsibility to create clear laws. And Congress should not be given a free pass in light of its failure to respond to the Court’s decisions.

It is true, as noted on this blog (see here and here) and elsewhere (see here, here, and here), that Congress appears at best uninterested in, and at worst hostile to, enacting more robust anticorruption laws. Yet we should not be too quick to conclude that getting meaningful amendments to the laws that the Supreme Court has interpreted narrowly would be a political impossibility. Indeed, at the end of August three Members of Congress (two Democrats and one Republican) introduced the No Gratuities for Governing Act, which would amend § 666 to expressly prohibit gratuities, and in so doing would hold state and local officials to the same standard that applies to federal officials (codified at 18 U.S.C. § 201). Three Senators (all Democrats) introduced a parallel bill in the Senate, the Stop Corrupt Gratuities Act, in early September. Despite the understandable cynicism about the ability of the U.S. Congress to act on this matter, there are several reasons why this proposed legislation might actually have a fighting chance:

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The U.S. Supreme Court’s Erosion of U.S. Anticorruption Law Continues

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The U.S. Supreme Court has been chipping away at the federal public corruption prosecutor’s toolkit over the past decade, in cases like McDonnell v. United States, Kelly v. United States, and Percoco v. United States. This past month, the Court heard oral arguments in a case called Snyder v. United States, which may further undermine federal prosecutors’ ability to go after state and local corruption. If the Court finds in favor of the defendant in Snyder, it could create a roadmap for American state and local government officials to profit from private interests at the expense of the public they are supposed to serve.

The specific statute at issue in the Snyder case is codified at 18 U.S.C. § 666. That statute, which happens to be the most prosecuted public corruption statute in the U.S., makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] …or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” federally funded program. The question at issue in the Snyder case is whether this statute criminalizes so-called gratuities—payments made in recognition of actions that a covered official has taken or has committed to take, but without any quid pro quo agreement to take those actions in exchange for the payment. The facts of the Snyder case illustrate this sort of payment: James Snyder, while mayor of Portage, Indiana, accepted $13,000, allegedly for “consulting services,” from a truck company shortly after that company was awarded a contract to sell garbage trucks to the city government. There is no evidence that the company offered or promised Snyder the payments in exchange for the contract. Nevertheless, the federal prosecutors successfully argued at trial that proving such an offer was unnecessary, because as long as the prosecution could show that the alleged “consulting fee” was actually a gratuity—a payment made by the company to thank, or reward, Snyder for the contract—then Snyder’s acceptance of this payment was enough to violate § 666.

It’s true, as Snyder’s lawyers argued to the Supreme Court, that the language of the statute does not explicitly include “gratuities.” But reading § 666 as covering gratuities is the only sensible way to read the statute if we are truly concerned with preventing public officials from being bought.

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