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Tuesday, July 23, 2013

Could FACs induce retirement of government officials? A "Corruption" Work-around?

Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?

We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.

Posted by Dan Markel on July 23, 2013 at 06:23 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink

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Comments

My dean, a former US Attorney, cited Napolitano and argued there is no difference between the two situations as a matter of federal bribery laws--the seeming peppercorn of consideration (my argument) didn't matter. He did say it would violate federal ethics rules.

Posted by: Howard Wasserman | Jul 23, 2013 7:21:40 PM

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