The Senate Judiciary Committee is considering a bill that would
greatly expand the reach of a key "public corruption" offense, an
offense that is already far too broad. In fact, the current statute
is already so ill-defined that public officials are likely to
violate it by engaging in conduct that no one should deem criminal
or define as "public corruption."
Nevertheless, supporters of expanding the federal gratuities
statute via the Senate's Public Corruption Prosecution Improvements
Act (PCPIA) are overtly rejecting the U.S. Supreme Court's analysis
in a unanimous opinion warning of the dangerous, unfounded
prosecutions that are likely to arise if policies like those in
this bill are permitted to authorize federal prosecutions.
The bill has several problems,[1] but its proposed changes to
the federal gratuities statute are among the most pernicious.[2] Rather
than weakening the gratuity statute's protections against unjust
prosecution and conviction, the Senate should be strengthening the
statute's criminal-intent requirement. For a criminal offense to be
relatively free from the possibility of abuse, it must include
precise, clear, and meaningful language requiring the government to
prove beyond a reasonable doubt that a person acted with criminal
intent.[3] Because this provision fails that test, it
would invite even more accusations of politically motivated
prosecutions.
Disregarding Dangers Highlighted in a
Unanimous Supreme Court Decision
In general terms, a gratuity is merely a gift, but in law it
often carries the additional meaning of a gift "given in return for
a favor or especially a service."[4] Specifically in the context
of federal public corruption law, "gratuity" generally implies
something given or offered, recieved or solicited in
contemplation of a public official using his office on behalf of
the giver--i.e., it is akin to a bribe.[5]
In the Sun-Diamond case, the lower federal courts had
extended the language of the gratuities statute to include a gift
given to a public official merely "on account of" or "because of"
that official's position. [6] Under this interpretation, it was not
necessary that the gift have been given in express or implied
consideration of the public official's taking (or foregoing) any
specific official act on behalf of the giver. A unanimous Supreme
Court rejected this broad reading of the statute, pointing out that
whenever a championship sports team visits the White House and
awards the President an honorary team jersey, the lower federal
courts' interpretation of the gratuities statute would have made
criminals out of both the President and whoever gave him the
jersey.[7]
PCPIA would change the public gratuities statute in a manner
that, as the U.S. Supreme Court warned, would subject to criminal
prosecution and punishment public officials and average Americans
who did nothing that should be considered wrongful. Rather than
accept the Supreme Court's modest reading from Sun-Diamond,
the PCPIA seeks to reverse it by altering the statutory language to
include the expansive scope of activity embraced by the lower
courts.
The result of such a change is not just to make criminals of
citizens giving actual gifts rather than bribes to public officials
but to criminalize acts of collegiality as well. For example, any
Member of Congress who uses a personal auto--or, heaven forbid, a
personal plane--to give another person a ride because the latter,
too, is a Member of Congress would be a criminal.
In addition to the negative practical effects, by functionally
delegating legislative authority to the executive branch--in this
case, to prosecutors--to define the actual contours of the offense,
overbroad criminal statutes raise serious constitutional questions
regarding the separation of powers. This is particularly
problematic in the context of the criminal law, where due process
requires that the law provide sufficient notice to potential
violators[8] and that the government prove that the
defendant both committed the wrongful conduct and had the requisite
guilty state of mind at the time. Exceedingly broad criminal
statutes that encompass and fail to distinguish between wrongful,
criminal conduct and totally innocent conduct constitute
unconstitutional traps for the unwary.
Political Prosecutions
If the PCPIA's proposed revision of the federal gratuities
statute were enacted, the gratuities statute would lack
criminal-intent protections, and the primary "safeguard" on which
federal officials would have to rely to protect them against unjust
prosecution would be federal prosecutors' good graces, their
exercises of professional judgment, and their desire not to engage
in politically motivated prosecutions.
While prosecutorial discretion serves a useful purpose, it
should not be unbounded. A narrowly defined criminal offense that
targets specific wrongful conduct and requires the government to
prove a meaningful level of criminal intent is the best protection
against prosecutions that could be politically motivated or
otherwise unjust.
The former head of the Justice Department's Criminal Division in
2008 lamented the bum rap DOJ's Public Integrity Section receives
no matter what it does.[9] If the number of cases that the Public
Integrity Section prosecutes is not large enough for some of its
critics, it is accused of being soft on fraud and corruption by
public officials. On the other hand, the prosecutions it does bring
are often criticized as being politically motivated. Some Members
of Congress have leveled similar accusations regarding politically
motivated prosecutions.
What they apparently fail to recognize is that narrowly defined
criminal laws are also a defense against false accusations that a
prosecution is politically motivated. Broad, vaguely defined
offenses that encompass a wide range of conduct--both wrongful and
innocent--and that do not require the government to prove that a
public official acted with criminal intent invite--indeed,
beg--criticism that charges brought under them are politically
motivated.
A Trap for the Unwary
A unanimous Supreme Court was not mistaken when it warned of the
dangers and injustices likely to arise if the federal gratuities
statute can be interpreted and applied in the manner that the
Senate proposes under the PCPIA. The broadened definition of the
already broad gratuities offense would criminalize innocent conduct
in which Members of Congress and other public officials currently
engage without doing anything that is truly wrongful or corrupting
to government.
The revised gratuities statute would thus invite politically
motivated and otherwise abusive prosecutions. Further, even many
prosecutions under the revised statutes that are not politically
motivated would be vulnerable to false accusations that they are in
fact politically motivated.
If Congress makes any changes at all to the existing federal
gratuities statute, the criminal-intent terms should be
strengthened so that only those persons who knew their conduct was
unlawful or otherwise wrongful can be convicted and subjected to
criminal punishment. This change would go far to help prevent the
gratuities statute from acting as the trap for the unwary that
concerned the Supreme Court. It would thus help ensure that public
officials and those who give them gifts are not made into criminals
unless they actually contemplated and intended the type of
gratuities-based alteration of their officials acts that can
actually corrupt good government.
Brian W. Walsh is Senior Legal Research Fellow
in the Center for Legal and Judicial Studies at The Heritage
Foundation.