Several statutes, mostly codified in Title 18 of the United States Code, provide for federal prosecution of public corruption in the United States. Federal prosecutions of public corruption under the Hobbs Act (enacted 1934), the mail and wire fraud statutes (enacted 1872), including the honest services fraud provision, the Travel Act (enacted 1961), and the Racketeer Influenced and Corrupt Organizations Act (RICO) (enacted 1970) began in the 1970s. "Although none of these statutes was enacted in order to prosecute official corruption, each has been interpreted to provide a means to do so."Whitaker, 1992, at 1617. The federal official bribery and gratuity statute, 18 U.S.C. § 201 (enacted 1962), the Foreign Corrupt Practices Act (FCPA) 15 U.S.C. § 78dd (enacted 1977), and the federal program bribery statute, 18 U.S.C. § 666 (enacted 1984) directly address public corruption.
The statutes differ in their jurisdictional elements, the mens rea that they require (for example, a quid pro quo or a nexus), the species of official actions that are cognizable, whether or not non-public official defendants can be prosecuted, and in the authorized sentence. The statutes most often used to prosecute public corruption are the Hobbs Act, Travel Act, RICO, the program bribery statute, and mail and wire fraud statutes.
These statutes have been upheld as exercises of Congress's Commerce Clause power, or in the case of the mail fraud and program bribery statutes, the Postal Clause and the Spending Clause, respectively. In the special case where a member of Congress is the defendant, the Speech or Debate Clause places certain restrictions on the actions that can be prosecuted and proved up. Some commentators have argued that prosecutions of state and local officials under these statutes pose substantial federalism questions, while others argue that the Guarantee Clause provides additional authority for such prosecutions.
History
Article Two, Section Four of the United States Constitution provides that: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors." Art II, § 4 (emphasis added). For a time in the early history of the country, corrupt public officials could be charged with the common law crimes related to corruption; such crimes could continue to be charged in the D.C. circuit court, where the laws of Maryland and Virginia remained in force, even after the Supreme Court's decision abolishing federal common law crimes in United States v. Hudson (1812).Ex parte Watkins, 32 U.S. (7 Pet.) 568 (1833) (common law crime of fraud); Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (same); United States v. More, 7 U.S. (3 Cranch) 159 (1805) (indictment for common law crime of exacting illegal fees under color of office); United States v. Worrall, 28 F. Cas. 774 (C.C.D. Pa. 1798) (conviction for common law crime of bribery).
The First Congress passed the "first federal law against bribery" in 1789, which provided that bribed customs officers would be disqualified from office and payors would be liable for the amount of the bribe.Schroth, 2006, at 554 (citing Act of July 31, 1789, ch. 5, § 35, 1 Stat. 29, 46–47). The judicial bribery provision of the Crimes Act of 1790, passed the following year, provided for disqualification, and a fine and imprisonment "at the discretion of the court," for both the judge and the payor.Schroth, 2006, at 554–55 (citing Crimes Act of 1790, ch. 9, § 21, 1 Stat. 112, 117). The Crimes Act of 1825 added the offenses of extortion under color of office, theft or embezzlement by a Second Bank employee, and coin embezzlement or dilution by a Mint employee.Crimes Act of 1825, ch. 65, §§ 12, 16, 24, 4 Stat. 115, 118, 120, 122.
The mail fraud statute, 18 U.S.C. § 1341, "[t]he oldest statute used to address public corruption," was enacted in 1872 and first used against public corruption in the 1940s.Carey et al., 1991, at 318 (citing Shushan v. United States, 117 F.2d 110 (5th Cir. 1941)). While several early cases employed the "intangible right to honest government," United States v. States (8th Cir. 1973)United States v. States, 488 F.2d 761 (8th Cir. 1973). was the first case to rely on honest services fraud as the sole basis for a conviction.Carey et al., 1991, at 318.
The prosecution of state and local political corruption became a "major federal law enforcement priority" in the 1970s.Baxter, 1983, at 321. United States v. Addonizio (3d Cir. 1971)United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971). and United States v. Kenny (3d Cir. 1972)United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972).—both brought by U.S. Attorney for the District of New Jersey, Herbert Jay Stern (later a federal judge)—were the first prosecution of political corruption pursuant to the economic fear prong and the "under color of official right" prong of the Hobbs Act, respectively.Henderson, 1977, at 386–88. Henderson describes these cases as the "New Jersey breakthroughs."Henderson, 1977, at 388 n.9.
In 1976, the Public Integrity Section was established within United States Department of Justice Criminal Division with general supervisory jurisdiction over public corruption offenses.Ruff, 1977, at 1208. By 1977, "[t]he four United States attorney's offices most active in this field—the Southern District of New York, New Jersey, Maryland, and the Northern District of Illinois—" had "developed coteries of high skilled prosecutors and a tradition of success that encourages an atmosphere of alertness to potential corruption cases."Ruff, 1977, at 1211.
In 1977, Thomas H. Henderson, Jr., the Chief of the Public Integrity Section, wrote:
In 1976, there were 337 indictments of state and local officials for public corruption, compared to 63 in 1970.Ruff, 1977, at 1172 n.1. Between 1970 and 1981, there were 520 federal indictments of state officials, and 1,757 indictments of local officials, for public corruption; over that period, 369 state officials, and 1,290 local officials, were convicted.Fleissner, 1985, at 1066 n.1 (citing , at 20 (1982)). In 1986, there were 916 indictments of public officials for corruption, 320 of which concerned state and local officials.Kurland, 1989, at 369 n.3. In 1990, there were 968 such indictments, 353 of which were against state and local officials.Whitaker, 1992, at 1617 n.1.
The Foreign Corrupt Practices Act (FCPA), 15 U.S.C. § 78dd-1, was passed in 1977. The program bribery statute, 18 U.S.C. § 666, was passed in 1984. In the program bribery statute, "Congress, for the first time, directly federalized the crime of bribery of or by local officials."Carey et al., 1991, at 322.
For example, between 1985 and 1991, over 75 public officials were convicted of corruption offenses in the Southern District of West Virginia alone.Carey et al., 1991, at 302. By comparison, the only appellate court decision citing West Virginia's Bribery and Corrupt Practices Act, in 1991, was a federal court decision involving the state statute as a federal RICO predicate.Carey et al., 1991, at 304.
Doctrinal overview The legal elements and features of the major federal public corruption offenses differ. The various jurisdictional elements of the offenses require that the prosecution prove, alternatively: that the payee was a federal official; that the payee organization received $10,000 in federal funds; that the corrupt communications involved the use of the mail or interstate wires; that the corruption affected interstate commerce or interstate travel. The mens rea elements differ in whether they require a quid pro quo; a mere nexus is an easier element to prove; more difficult elements to prove include the intent to be influenced and inducement. The offenses also differ in whether the act to be procured from the public official must be an official, a violation of an official duty, a fraud on the United States, or an official transaction. The offenses also differ in whether the payor may be prosecuted in addition to the public official. Finally, the offenses differ in whether they are predicates for Racketeer Influenced and Corrupt Organizations Act and money laundering prosecutions, and in the maximum authorized prison sentence that may be imposed upon conviction.
Federal briberyFederal gratuityProgram briberyHonest services mail and wire fraudHobbs Act (fear)Hobbs Act (under color of official right)Travel ActJurisdictional elementFederal officialsFederal officialsFederal funding exceeding $10,000Mail or interstate wire communicationInterstate commerceInterstate commerceInterstate travel, mail, or interstate commerceMens reaQuid pro quo (QPQ) and nexusNexusEither (1) QPQ and intent to be influenced, or (2) nexusBribes or kickbacksIntent hurt the victim in economic terms and victim fearsQPQQPQSpecies of quosFuture official act, fraud on the United States, or violation of dutyPast or future official actFuture official transaction exceeding $5,000Official act or violation of dutyAnyAnyAnyPayor defendantsYesYesYesYesNoNoYes, for briberyNo, for extortionPredicate statusRICO and MLRICO and MLMLRICO and MLRICO and MLRICO and MLRICO and MLAuthorized sentence (years)152102020205
Federal officials The federal bribery and gratuity statute, 18 U.S.C. § 201, was enacted in 1962 as part of a comprehensive conflict-of-interest legislative reform.Act of Oct. 23, 1962, Pub. L. No. 87-849, 76 Stat. 1116 (codified at 18 U.S.C. § 201). See also Curato et al., 1983, at 1072. The Supreme Court considers subsections (b) and (c) to be "two separate crimes—or two pairs of crimes."United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404 (1999).
In Dixson v. United States (1984), the Court held that, under the federal bribery and gratuity statute, the definition of a "public official" includes anyone in a "position of public trust with official federal responsibilities," including for example the employees of a non-profit that administers a federal block housing grant.Dixson v. United States, 465 U.S. 482 (1984). The term "official act" is limited to acts which are performed within the scope of the official's employment.Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc). It is no defense that the official action was otherwise meritorious.United States v. Alfisi, 308 F.3d 144 (2nd Cir. 2002) (no defense that USDA inspectors were bribed to perform their statutory duty). See also United States v. Manton, 107 F.2d 834 (2d Cir. 1938) (correctness of ruling no defense to judicial bribery).
For both the bribery and gratuity subsections, the courts have interpreted an implicit exception for campaign contributions.United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974). See also Weeks, 1986, at 129–32.
Bribery The federal bribery statute, 18 U.S.C. § 201(b), criminalizes the corrupt promise or transfer of any thing of value to influence an official act of a federal official, a fraud on the United States, or the commission or omission of any act in violation of the official's duty.18 U.S.C. § 201(b). 18 U.S.C. § 201(b)(1)–(2) provides: (b) Whoever – (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent – (A) to influence any official act; or (B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;