Tag Archives: Supreme Court

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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Judicial Integrity and Judicial Independence: A Clash of Values?

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This past spring, the investigative journalism site ProPublica broke a major story about ethically questionable—and previously undisclosed—relationships between ultra-wealthy (and politically active) individuals and Supreme Court justices. The reports focused in particular on Justice Thomas and Justice Alito, two of the Court’s most conservative members. According to ProPublica’s reports, in 2008 Justice Alito accepted a luxury fishing trip—which involved flights on a private jet and a stay at a lodge that charges more than $1,000 a day—from billionaire Paul Singer, whose hedge fund often had cases before the Court, including a 2014 case in which Justice Alito did not recuse himself and voted in the hedge fund’s favor. With respect to Justice Thomas, ProPublica revealed that for years—starting shortly after he joined the Court—Justice Thomas has received substantial benefits from billionaire “friends,” including private plane flights, luxury vacations, VIP passes to sporting events, and private school tuition for his nephew (whom Justice Thomas has raised like a son). Most of these gifts came from right-wing billionaire Harlan Crow, who also purchased from Justice Thomas (in a previously undisclosed deal) the house where Justice Thomas’s mother and other members of his family lived, but Justice Thomas received substantial benefits from other billionaires as well.

Many critics denounced these gifts and other transactions as evidence of blatant corruption (see here, here, here, and here). Some even drew a connection  between the Court’s jurisprudence in corruption cases—which has embraced an ever-more-restrictive definition of corruption, often limiting it to quid pro quo deals—and the Justices’ own proclivity for accepting gifts, perks, and other benefits from people with a strong ideological (and sometimes personal) stake in the Court’s decisions (see here and here). Justice Thomas and Justice Alito vigorously defended their conduct (see here and here), though they did ultimately update their financial disclosure forms for 2022 (though not earlier years) to show additional benefits they had received, and to proffer some explanations. And the Justices’ supporters have accused the accusers of using these alleged ethical issues as a pretext for attacking Supreme Court Justices whom they dislike on ideological grounds (and overlooking similar ethical lapses by Justices whose ideology they prefer).

I have my own fairly strong views about this specific controversy, but I don’t want to go into that right now. I’m not sure I have anything to add—and I’m acutely aware that, whether or not one buys the charges of pretext and selective outrage—it is very difficult to talk about this issue without being influenced by (or perceived as influenced by) one’s views on Justice Thomas’s and Justice Alito’s jurisprudence and ideology. But even putting the specifics mostly to one side, I do think the fallout from ProPublica’s reporting implicates a more general issue—one that is very difficult, and that is relevant not only in the United States but in many other countries as well: To what extent can or should the other branches of government (the executive, the legislature, or—in the countries where such entities exist—an independent anticorruption commission) impose and enforce ethical rules on the highest court (the Supreme and/or Constitutional Court)? Continue reading →

The U.S. Supreme Court Has an Appearance Problem: What FEC v. Cruz Got Wrong

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According to the U.S. Supreme Court, campaign contributions are a form of political “speech” and are therefore protected by the First Amendment of the U.S. Constitution. As a result, the government may restrict such contributions only if doing so serves a compelling state interest. Currently, the only interests that the Court has recognized as sufficiently compelling to justify restrictions on political spending are preventing corruption or the appearance of corruption.

Though sometimes presented as a single interest, the prevention of actual corruption and the prevention of the appearance of corruption are not the same. The reason the government has an interest in preventing actual corruption is obvious. The Court has explained the related but distinct interest in preventing the appearance of corruption by appealing to the importance of maintaining public confidence in the electoral process. If a certain campaign finance activity creates the appearance of corruption, then ordinary citizens may start to view their political participation as futile, and may lose faith in the integrity of elections. Because Congress has an interest in preventing this erosion of public trust, the government can regulate campaign finance activities that the public perceives as corrupt, even when those activities are not associated with actual corruption.

At least that’s what the Court has said. In practice, however, the Court has often failed to apply the appearance of corruption standard in a way that serves these objectives. This is nowhere clearer than in the Court’s recent decision in Federal Election Commission (FEC) v. Cruz. The case concerned a federal law that prohibited a candidate from using post-election campaign donations to repay more than $250,000 of personal loans that the candidate made to his or her campaign prior to the election. The government justified this law partly on the grounds that it prevented the appearance of corruption. After all, when a candidate uses donations to repay personal loans, the donor’s contributions go straight into the candidate’s pockets; the public could easily view such payments as fostering corruption. In support of this argument, the government pointed to a public opinion poll in which 81% of respondents thought it was “likely” or “very likely” that donors who make post-election contributions expect a “political favor” in return. Additionally, the government cited an academic study that found—on the basis of over three decades of empirical evidence—that politicians with campaign debts are “significantly more likely” than debt-free politicians to switch their votes after receiving contributions from special interests.

This evidence, on its face, would seem to support the government’s claim that the limit on using post-election donations to repay a candidate’s large personal loans furthers its compelling interest in preventing the appearance of corruption. However, the Court’s majority opinion dismissed the government’s appearance-based argument in a brief passage with relatively little sustained analysis, apparently treating the flaws in the government’s arguments as self-evident. The Court’s dismissive attitude to the government’s evidence in this case indicates a worrisome approach to the appearance-of-corruption issue more generally.

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How the U.S. Supreme Court Might Undermine Longstanding Safeguards Against Pay-to-Play Corruption

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A campaign finance case currently pending before the U.S. Supreme Court, Federal Election Commission (FEC) vs. Cruz, could have serious implications for corruption in the United States. The essential facts of the case are these: Just a day before Senator Ted Cruz’s narrow victory in the 2018 Senate election, Cruz personally lent $260,000 to his campaign. Under federal campaign finance law, contributions to a candidate’s campaign that come in after the election has already occurred can be used to repay up to $250,000 in personal loans a candidate has made to their own campaigns, but no more. Therefore, Cruz’s campaign reimbursed him only $250,000, not the full $260,000. Cruz challenged the cap on reimbursing a candidate’s personal loans from post-campaign donations as an unconstitutional limit on political speech in violation of the First Amendment of the U.S. Constitution.

If Cruz wins—and he very well might—the result could be a substantial increase in bribery of U.S. elected officials. As many commentators have noted (see here, here and here), allowing a victorious candidate to have their loans repaid by private interests is a recipe for quid pro quo corruption. After all, this money goes into an elected official’s pocket, and the fact that the contributions are made after an election increases the likelihood that a post-election donor knows that the recipient will be in a position to do him official favors. But the risks that this case poses to anticorruption law go beyond the particular activity at issue in the case itself. There is a very real risk that the Supreme Court will use this case to further limit the sorts of interests that can justify campaign finance restrictions of any sort, thereby jeopardizing seemingly well-established and recognized limitations on political spending that have long been justified on the grounds that they prevent corruption and its appearance.

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Tackling Corruption While Preserving Judicial Independence: Lessons from India’s Supreme Court 

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In India, Justices of the Supreme Court and judges of India’s 25 regional High Courts are appointed through a process known as the Collegium System. Although the Constitution vests the appointment power in the President of India, the President may only appoint a Supreme Court or High Court nominee recommended by a body called the Collegium, which consists of the Chief Justice, the four other senior-most Supreme Court Justices, and, in the case of High Court nominees, the senior-most judge on the High Court of the prospective appointee.

This system, which developed over the 1980s and 1990s as part of a decades-long tug-of-war between the branches of government, is controversial. Some critics have argued that the Collegium, which operates largely as a black box, leads to the selection of judges based on cronyism and quid pro quos, regardless of a nominee’s merit or scruples. Notably, critics contend, the Collegium System allows for the appointment of corrupt judges because the secrecy of the Collegium’s deliberations prevents accusations of impropriety against those nominees from becoming public. In buttressing this claim, critics point to instances of High Court judges who have been credibly accused of corruption, including one who was formally charged at the end of last year for taking a bribe in exchange for a favorable verdict. Critics also contend that the Collegium System exacerbates judicial corruption through another, more indirect channel: The Collegium’s slow pace has left hundreds of High Court seats vacant, which exacerbates the Indian court system’s extreme case backlog. That backlog, in turn, encourages petty bribery, as many frustrated litigants would prefer to bribe a judge or court official to jump the line or get a case dismissed rather than wait years for a final resolution. Even former Chief Justice V.N. Khare acknowledged that bribes for bail are rampant in the lower courts given the delays litigants may face down the line.

In response to these concerns, the Indian Parliament, led by Prime Minister Narendra Modi, voted overwhelmingly in 2014 to amend the Indian Constitution to replace the Collegium with a National Judicial Appointments Commission (NJAC) composed of representatives from all three branches. But before the law could go into effect, the Supreme Court ruled it an unconstitutional threat to judicial independence. While calls for reform temporarily abated, just last December a member of Modi’s cabinet expressed support for reintroducing the NJAC amendment to replace the Collegium System.

Any such attempt, however, would be misguided. Anti-Collegium reforms like the NJAC would undermine India’s hard-won judicial independence, and the corruption problem these reforms would purport to solve has been greatly exaggerated.

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The Brazilian Supreme Court’s Most Recent Ruling in the Lula Case Reveals the Court’s Own Bias

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Back in 2017, a Brazilian court convicted former President Lula for corruption offenses in connection with a seaside apartment that Lula allegedly received as a bribe from a construction firm. In 2019, he was again found guilty of a corruption offense in a separate trial, this time for receiving bribes in the form of improvements to his country house. And he faced other corruption charges as well, including an indictment in which Odebrecht—a major construction firm and one of the most significant players in the Car Wash scandal— allegedly bribed Lula by agreeing to construct a headquarters for his foundation, the Lula Institute. The principal evidence for this latter accusation was acquired by prosecutors as part of a so-called “leniency agreement” with Odebrecht. In Brazil, leniency agreements are negotiated settlements, regulated by the Clean Company Act (CCA), in which companies voluntarily agree to confess unlawful conduct, pay penalties, and take other remedial action—including cooperating with prosecutors by providing evidence against other wrongdoers—and, in return, the companies have their sanctions and fines reduced (see, for example, here, here, and here). Such agreements have been critical to the success of the Car Wash Operation, and more generally to the effectiveness of Brazil’s fight against corruption.

But this past June, the Brazilian Supreme Court decided to nullify the evidence against Lula that had been collected under the Odebrecht leniency agreement (here). The Court’s ruling was not only legally flawed, but its reasoning, if accepted, threatens to undo dozens of prior corruption convictions and to create a cloud of uncertainty surrounding the validity of evidence obtained in leniency agreements. Such a ruling would needlessly undermine the ability of Brazilian prosecutors and courts to fight corruption in the future. Of course, the Court may not actually adhere to its legal reasoning in future cases—but that only underscores another problem: though the Brazilian Supreme Court has criticized lower court proceedings as biased against Lula, the Court’s own conduct, particularly in the most recent case, suggests an unacceptable bias in Lula’s favor.

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The Emoluments Clause Cases Against Donald Trump: A Post Mortem

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Of the many credible corruption and conflict-of-interest allegations against former President Donald Trump, some of the most prominent concerned the income that the Trump Organization earned from parties with interests in influencing U.S. government policy. While the general conflict-of-interest rules that cover most federal officials do not apply to the President, a subset of the Trump Organization’s business dealings—in particular, those involving foreign governments and state governments—at least arguably violated the U.S. Constitution’s two so-called “Emoluments Clauses. (The Foreign Emoluments Clause prohibits any U.S. official from receiving gifts, titles, or “emoluments” from foreign governments, while the Domestic Emoluments Clause prohibits the President in particular from receiving any benefits other than his official salary from federal, state, or local governments.) President Trump’s alleged violations of the Emoluments Clauses triggered three separate lawsuits, filed by different parties in different federal courts, within Trump’s first six months in office. Those cases gradually wound their way through the legal system, with some defeats and some victories, mainly on threshold legal questions.

Last week, the U.S. Supreme Court brought that whole process to a halt, dismissing petitions for review in two of those pending cases as moot. (The third case had been dismissed by an appeals court, and the Supreme Court declined to review that case last fall.) Thought the Court’s terse, unsigned order included no explanation, the obvious inference is that the Court determined that the Emoluments Clause suits were moot because Donald Trump is no longer President. Importantly, the Court’s mootness order means not only that these suits won’t proceed, but also that the previous legal rulings in the cases under review are vacated, and thus have no precedential value. Legally speaking, it’s as if the cases never happened.

This did not sit well with everyone. Former head of the Office on Government Ethics Walter Shaub described the Court’s dismissal of the cases as “insane,” arguing that the cases are “not moot” because Trump “still has the money.” “When any other federal employee violates the emoluments clause,” Shaub observed, “they have to forfeit the money.” Others involved in the litigation against Trump tried to look on the bright side. The Citizens for Responsibility and Ethics in Washington (CREW), for example, issued a statement noting that the Emoluments Clause litigation “made the American people aware for four years of the pervasive corruption that came from a president … taking benefits and payments from foreign and domestic governments.”

I’ve been trying to figure out what I think about all this. I don’t have a clear, clean bottom line, but I do have a few scattered thoughts about what we might take away from the denouement of the Emoluments Clause controversy. Continue reading →

The Significance of Mexico’s Upcoming Referendum on Lifting Former Presidents’ Immunity from Prosecution

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Mexican President Andrés Manuel López Obrador (commonly known as AMLO) has repeatedly assailed Mexico’s former presidents as corrupt. However, despite his attacks, AMLO has said that he does not want to pursue criminal actions against his predecessors. Therefore, AMLO raised eyebrows this past September when he called for a referendum that asks citizens to vote on the question whether “the relevant authorities should, in accordance with the applicable laws and procedures, investigate and if appropriate punish, the presumed crimes committed by former presidents,” specifically naming former presidents Enrique Peña Nieto, Carlos Salinas de Gortari, Ernesto Zedillo, Vicente Fox, and Felipe Calderón. Opponents challenged the referendum as unconstitutional, on the grounds that Mexico’s Constitution prohibits popular consultations on matters involving guarantees like the presumption of innocence and due process. However, Mexico’s Supreme Court narrowly held, by a 6-5 vote, that the referendum would be constitutional, but voted 8-3 to modify it. The Court altered the language by deleting the reference to the ex-presidents and the phrase “presumed crimes” so that the referendum now reads: “Do you agree or not that the relevant authorities should, in accordance with the constitution and legal framework, undertake a process of clearing up political decisions taken in previous years by politicians, with an aim to guaranteeing justice and the rights of possible victims?” Mexico’s lower house of Congress approved the revised referendum and set the date of the vote for August 2021. AMLO, however, wants the referendum to be held in June 2021, during Mexico’s midterm elections.

Seizing on the vagueness of the referendum and AMLO’s hostility towards his predecessors, AMLO’s opponents have attacked him for attempting to undermine the judicial system and seek political revenge by having a public vote on whether to prosecute and convict former presidents. Other critics have argued the referendum, which is both vaguely worded and non-binding, will not have any real impact, and amounts to little more than political virtue signaling intended to boost AMLO’s party in the upcoming midterm elections.

To a certain extent, I agree with the latter criticism. AMLO’s primary motivation in promoting this referendum is likely political: He wants to (re)create a positive association between his party and the fight against corruption. It’s probably not a coincidence that the push for the referendum comes at a time when one of Mexico’s biggest corruption scandals is unfolding, with former President Peña Nieto accused of taking millions of dollars in bribes from the Brazilian construction company Odebrecht. It’s probably also not a coincidence that AMLO wants to hold the referendum vote on the same day as the 2021 midterm elections. Despite having won power in a landslide in 2018, AMLO and his party are currently in political trouble. Mexico continues to face economic stagnation and high crime, and AMLO’s administration has failed to control the coronavirus. As for AMLO’s promise to rid his country of corruption—a major component of his presidential campaign—he hasn’t made much progress here either. AMLO’s anticorruption credentials have been further tarnished by a leaked video showing AMLO’s brother receiving packages of money from a government functionary that were used to strengthen AMLO’s political party ahead of the 2018 election. It seems that AMLO is attempting to divert attention from his political and policy failures by introducing a referendum that will focus attention on the corruption of prior administrations.

But just because there is a political motivation behind the referendum does not mean that the referendum won’t have a meaningful impact. It likely will, whichever way it comes out.

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