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Tuesday, March 06, 2012

Can Federal Prosecutors' Anti-Corruption Crusades Be Reined In With Statutory Construction?

I hope so, but I am skeptical. The problem is that, even massaged with "quid pro quo" requirements and the like, these mushy piles of verbiage in the federal code give U.S. Attorneys material with which to conflate ordinary campaign finance, log rolls, and patronage with criminal conduct. Moreover, even when well-intentioned, such prosecutions also too frequently give off the appearance of political vendettas against an Administration's partisan enemies. For this reason, I have argued that the feds should confine their efforts to pursuing conduct that is unequivocally criminal under state laws prohibiting bribery and kickbacks. (I've pressed this line in Federalism & Corruption, 6 Theoretical Inquiries 113 (2005)).

Yet I cannot see that ordinary tools of statutory construction can curb federal prosecutors' insatiable appetites for headline-stealing prosecutions of rival pols. Consider two recent prosecutions as illustrations of the problem of prosecutorial creativity. First, SDNY's U.S. Attorney is charging Jennie Hou, a campaign manager for City Comptroller Liu, with conspiracy fraudulently to obtain money or property in violation of the Mail Fraud statute (18 U.S.C, section 1343). The complaint is based on the allegation that Hou illegally used "straw donors" to evade the City's campaign finance limits on the amount that individual donors can contribute and thereby fraudulently obtain city matching funds. Second, federal prosecutors convicted Mississippi trial lawyer Richard "Dickie" Scruggs with "bribing" a state judge by promising to endorse him, in violation of the Mail Fraud Act's "honest services" provision. In my view, both cases present examples of gratuitous federalization of non-federal politics. Hou's conduct is adequately regulated at the state and local level: Piling on with federal sentences that dwarf the relevant non-federal sentences is senseless savagery. The prosecution of political endorsements as a "bribe" is worse: It is the criminalization of ordinary politics that, if logically extended to ordinary legislative log rolls, would make the entire congressional appropriations process a felony.

An important amicus brief written by my colleagues, Rick Pildes and Sam Issacharoff, urges the SCOTUS to grant cert in the Siegelman case to resolve these perplexities of the Mail Fraud statute. (Rick Hasen has a write-up on both the case and brief). Yet, as I suggest after the jump, I doubt that the SCOTUS can put the kibosh on this criminalization of politics run amok with mere statutory construction.

Consider, first, Hou's case. Contrary to my worries expressed in my last post, the feds are not charging Hou with "honest services" fraud in violation of the SCOTUS' Skilling decision. (Thanks to Professor Peter Henning of Wayne State Law School for pointing this out to me). Instead, they are gratuitously adding a 20-year sentence to a violation of a campaign finance law that itself carries only a penalty of a $10,000 fine and a civil fine "three times the sum by which such donation exceeds the applicable donation limitation." As a practical matter of policy, this is a grotesque distortion of the local law that the feds are apparently trying to vindicate. NYC law treats these violations as Class A misdemeanors, and New York State treats the most harshly punished fraud (identity theft) as a Class D Felony subject to a five-year maximum sentence.

What possible sense does it make for federal officials to punish conduct practically injurious only to state and local citizens many times more harshly than those citizens themselves would punish the same conduct? This prosecution is utterly gratuitous piling on by the feds, violating the spirit of federalism by imposing savage federal sentences on a population that expressly rejects such savagery. Yet SCOTUS's efforts to curb federal prosecutions with lenity and the like will do nothing to stop this zealotry, which is squarely within the goofy letter of an absurd law.

Scrugg's case is a more dramatic example of prosecutorial excess, because it criminalizes political behavior -- the trading of candidate endorsements in return for political support -- on which ordinary democracy depends. Scruggs was convicted for "bribing" a state judge to support Scrugg's fee request with the promise of an endorsement. The federal prosecutor's theory is apparently that an endorsement is a "thing of value" that can constitute a bribe for the purposes of the Mail Fraud statute's "honest services" provision just as easily as cash.

As many have noted, such a theory of bribery applies squarely to any public interest group's promise to endorse a legislator in return for that legislator's vote. Once bribery is defined to include political favors beside cash, then the Sierra Club's promise to endorse Senator Green in exchange for Senator Green's voting green is just as much of a "bribe" as the Sierra Club's passing an envelope full of unmarked bills to Green. One might respond that such a theory plainly violates the First Amendment's protections for political speech. Yet such a theory was dismissed by Judge Davidson in Scruggs' case on the theory that "[t]he requirements of corrupt intent and a quid pro quo exempt from proscription innocent or inadvertent conduct and mark the difference between bribery and legitimate political advocacy." (U.S. v. Scruggs, Slip Copy, 2011 WL 6812626, at 5 (N.D.Miss.2011)).

Of course, the "quid pro quo" requirement does nothing whatsoever to distinguish Scruggs' case from my hypo regarding Senator Green and the Sierra Club: The Sierra Club expressly stated that their endorsement is a "quid" in exchange for the "quo" of a vote. As for "corrupt intent," what exactly does that enigmatic phrase mean? Is it "corrupt" to want to influence the political process with one's endorsement? What if one wants a federal grant for one's home town? What if one wants a federal job? Was Henry Clay guilty of bribery if he told his supporters to vote for John Quincy Adams on the understanding that Adams would make him Secretary of State? Fund-raisers raise money for political parties in hopes of being tapped for largely honorific roles as Ambassador to the Bahamas. If one discovered a tape recording of a President stating the obvious -- "give the job to Charlie: he's been a tireless worker on behalf of the Party" -- would that be a smoking gun suggesting "quid pro quo" bribery?

Beefing up the quid pro quo requirement, therefore, will do little to stop federal prosecutorial zealotry in crafting new common-law crimes out of the putty that is the Mail Fraud statute. i suppose that the SCOTUS might also try to limit the scope of the "bribery" required by Skilling to exclude any constitutionally protected speech from the scope of "things of value" necessary to prove a bribe. Note, however, that this would involve construing a non-existent term -- "bribery" -- that occurs nowhere in the text of the Mail Fraud's "honest services" provision -- piling textually controversial gloss on controversial gloss. Note also that such a move would pervasively constitutionalize the Mail Fraud statute and have odd application to various sorts of political exchanges -- vote-trading within a legislature, for instance -- where the application of the concept of "protected speech" is a little attenuated. (If I agree to vote for same-sex marriage in return for your vote in favor of agricultural subsidies, is my vote "protected speech"? Does an affirmative answer to that last question mean that the Rules Committee of the House cannot impose a special rule on voting to deprive me of the chance to cast a floor vote? Or will the Speech and Debate clause protect Congress from having its log rolls policed by the feds? What about state legislatures? Will the SCOTUS have to make up a whole "mini-speech and debate" clause to stop some zealous federal prosecutor from busting an Albany lawmaker who refuses to back Bloomberg's efforts to get more state aid for NYC unless Bloomberg agrees to stop lobbying for changes in teacher discipline?)

In short, the conundra raised by federal policing of non-federal corruption are so dense and tangled that there seems to be little chance of their being cleanly resolved except by the feds' wholesale withdrawal from the area. I'd suggest that the feds no prosecute any non-federal conduct that does not fall squarely within the definition of "bribery" used by the relevant state courts. Albert Altshuler argued in his Weyhrauch amicus brief that this would make federal anti-corruption law non-uniform. He says that like disuniformity is a bad thing. I believe, by contrast, that disuniformity in criminal law designed to protect citizens from the corruption of their own officials is desirable, not deplorable, because those citizens have different tastes for criminal severity.

Posted by Rick Hills on March 6, 2012 at 12:15 PM | Permalink


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Any idea what happened with these proposals?

Posted by: Orin Kerr | Mar 9, 2012 2:09:10 AM

The argument under consideration is that feds should stick to prosecuting conduct that is clearly illegal under state law. I don't see how the fact that a state legislature is "dysfunctional" (for whatever reason) answers this argument.

Are they so dysfunctional that they have decriminalized bribery and kickbacks? In other words, is the claim that the substantive law of the state is being altered by these dysfunctional badniks? I don't think there's any evidence for that claim. And if they haven't, then the fact of their dysfunction doesn't change anything.

Or is the claim that the state government is so dysfunctional that it's the responsibility of the feds to "clean it up"? This only makes sense if your view is that the people are the problem rather than the institutional set-up. Again, I'm not familiar with any evidence for that claim; it seems to me that if the New York state legislature doesn't work well, it's probably not because the people who occupy it are evil, but because the way it's set up encourages dysfunction (much like some national legislatures I could name).

I'm not sure why there's a national interest in "filling in the gap" if what's meant is "criminalizing more conduct than local law does." Say New York City permits campaign practices that, in the view of most other cities, ought to be prohibited. Very well. Those other cities and states are free to prohibit them. They suffer not even slightly from New York's campaign rules unless they live there, in which case they will, of course, have the franchise. To the extent that New York City's resulting governance creates spillover effects on other jurisdictions, Congress and the state government may well have a legitimate role to play in policing the spillover... but of course, they'd have that role no matter what the campaign laws of the city were.

I could---maybe---imagine an argument whereby the citizenry of a city were completely against the current system, but were powerless to change it because the incumbent political interests had rigged the rules so it was impossible to get rid of them. The role there of the national authorities would be basically to discharge their responsibilites under the Republican Government Clause, ensuring that basic norms of self-government were observed. But is there any plausible claim that this is what's going on in these exotic federal prosecutions? Is there even a plausible claim that such a "pulling up the ladders" scenario has actually occurred?

Posted by: Victor Nightingale | Mar 7, 2012 10:22:13 AM


I don't assume that. But one important argument for a federal role is to fill in the gap left by dysfunctional state and local governments -- either in clarifying what should be a crime, or in bringing prosecutions in appropriate cases. I don't know what I make of that argument: Maybe it makes sense, and maybe it doesn't. I'm not very familiar with the the relationships among the different players in New York state and individual federal districts. But I guess I would like to hear a measured response to the argument.

As for why we would expect different officials to act differently in different governments,a few possible points come to mind. First, the dysfunctionality is partly the legislature, not city officials. Second, New York State is not just Manhattan, so the equivalence you draw seems rather limited. Third, your argument is premised on an assumption you haven't established: That these officials are the ones in charge of investigation and prosecution decisions in both the federal and state/local contexts. Maybe that's self-evidently true, but I'm not very familiar with New York city and state government practices.

Anyway, I'm not defending these practices: I'm probably more on your side than the other side. But I guess I see serious arguments on the other side.

Posted by: Orin Kerr | Mar 6, 2012 10:39:02 PM

Orin, why do you assume that federal criminal prosecutions on avant garde theories of corruption will help matters?

Many NYC leaders have served in the U.S. Attorneys' offices for SDNY and EDNY -- Rudy Giuliani, Claude Millman, Ross Sandler, etc. If these guys govern so well in the U.S. Attorneys' office, then why can't we trust them to mind the shop in city government? On the other hand, if one can't trust these subnational officials, then why were they so great as prosecutorial overseers when they worked for the feds? The notion that "the feds" are some Eliot Ness-style Untouchables who are uniquely immune from local political pressures while the subnational officials are a bunch of mutual back-scratchers who give local corruption a pass is a myth that overlooks the plain fact that the federal and subnational officials are largely the same people. The advantage of using subnational officers -- i.e., former or future federal officials -- is that they have tools more subtle than meat cleavers like the Mail Fraud Act.

The feds should stick to their knitting -- garden-variety, uncontroversially evil corruption -- and leave the rest of the policing to the Manhattan DA's office, the Conflicts of Interest Board, the Bureau of Inspections, etc.

Posted by: Rick Hills | Mar 6, 2012 6:25:17 PM

Rick, how much do you think it matters -- either descriptively or normatively -- that the New York state government is consistently rated the most dysfunctional state government in the United States?


Posted by: Orin Kerr | Mar 6, 2012 5:39:04 PM

AF writes: Is your argument (1) that non-federal "conduct that does not fall squarely within the definition of 'bribery' used by the relevant state courts" should not be punished at all or (2) that it may be punished, but by the states not the feds?

My position is neither, AF. To repeat myself (again):

"I'd suggest that the feds not prosecute any non-federal conduct that does not fall squarely within the definition of 'bribery' used by the relevant state courts."

The feds can prosecute conduct under federal law in federal court that would constitute a bribery offense under state law. In effect, federal criminal law would incorporate state-law criminal standards on bribery.

As for punishing gratuities, conflicts of interest, disclosure requirements, and other unethical conduct falling short of bribery, I hope I never suggested that this conduct should not be punished at all! I thought I quite clearly stated that subnational government had officials in place to deal with such matters. But, if the feds are to put in their oar, then they ought to use a more subtle instrument than a criminal statute with a 20-year sentence, one in which there is no definitions of required disclosure, conflicts of interest, or forbidden gratuities. to leave this stuff up to the U.S. Attorneys really is dereliction of legislative duty. It actually turns out to be tricky to design a good ethical system: Why would one trust such design to federal prosecutors?

Posted by: Rick Hills | Mar 6, 2012 4:10:39 PM

Is your argument (1) that non-federal "conduct that does not fall squarely within the definition of 'bribery' used by the relevant state courts" should not be punished at all or (2) that it may be punished, but by the states not the feds? If the latter, how do you deal with Orin's point that the feds are better positioned than the states to investigate state corruption?

Posted by: AF | Mar 6, 2012 3:59:31 PM

Got it, thanks.

Posted by: Orin Kerr | Mar 6, 2012 3:00:32 PM

Orin's "not entirely sure what [I am] arguing." So, at the risk of repeating myself, I'll repeat myself, in hopes that saying the identical thing twice makes it extra-clear:

"I'd suggest that the feds not prosecute any non-federal conduct that does not fall squarely within the definition of 'bribery' used by the relevant state courts."

Am I making sense yet?

Yes, federal prosecution helps shine the bright light of an indictment on conduct that politically connected state and local prosecutors might fail to expose. But I do not see any need to expose conduct criminally unless it is already criminal under the state's law of bribery. Corrupt subnational officials might very well silence their own law enforcement officials, but it seems really unlikely that they will somehow corruptly amend their state's criminal code. So, since Skilling requires bribery or kickbacks, I'd suggest that, rather than fashion a special federal common-law definition of Skilling-"required bribery," federal law should incorporate state-law bribery standards.

This does not solve the problem of the feds' pressing section 1343 "property fraud" cases against people like Hou where bribery is not an issue but there is a vast disparity between the gravity of the state-law offenses and the Mail Fraud sentences. In such cases, I'd recommend that the feds hold back unless the underlying conduct would violate some state criminal statute with penalties roughly close to the federal sentences. Alternatively, the problem could be solved by having Main Justice pre-clear these prosecutions a la DOJ's Petite policy, barring federal prosecutions for piffling campaign finance non-disclosure. A third possibility is simply to have federal investigators turn their files over to state and local inspectors general: Rose Gill Hearn in the NYC Bureau of Inspections is an aggressive watchdog, and I find it hard to believe that unleashing 20-year federal sentences for petty straw-donor skullduggery is called for when NYC law provides ample remedies for this sort of conduct.

Posted by: Rick Hills | Mar 6, 2012 2:11:49 PM

Just off the top of my head, I would think that the federalization of law involving state corruption practices has the substantial benefit of vesting the investigation and prosecution decisions in a government team not involved (or having a conflict of interest) in the corruption. I gather you agree in theory, but believe that federal prosecutors in these two cases are stretching the law too far? I guess I'm not entirely sure what you are arguing.

Posted by: Orin Kerr | Mar 6, 2012 12:29:51 PM

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