Bribery and Public Corruption

In recent years the federal government has vigorously prosecuted alleged violations of federal bribery and public corruption laws. The federal government is a formidable adversary when it investigates or prosecutes any federal crime, but cases concerning alleged violations of federal bribery and public corruption laws may raise special challenges if the accused is a high-profile public figure closely watched by the media.

Finch McCranie has been at the front lines of bribery and public corruption cases for years and has successfully defended clients alleged to have committed such crimes. Indeed, the firm has successfully represented a U.S. Congressman, a former Governor, and several state and local officials. If you are being investigated or prosecuted for alleged violations of federal bribery and public corruption laws, then it is essential to hire skilled and experienced federal criminal defense lawyers. We have substantial expertise in federal bribery and public corruption cases, work hard, and represent individuals the way we would want to be represented. If you have a federal criminal matter to discuss, please contact us at (404) 658-9070.

Over the past several decades, courts have narrowed the scope of broad and vague federal laws criminalizing bribery and public corruption. In a series of cases, the Supreme Court has rejected several expansive prosecution theories and affirmed the principle that federal anti-bribery laws—which contain harsh criminal penalties—are not meant to be ethics codes that “set[] standards of disclosure and good government for local and state officials.” McNally v. United States, 483 U.S. 350, 360 (1987). Through such cases, the Court has sought to limit the reach of federal anti-bribery statutes to truly culpable conduct.

While the borders of federal anti-bribery laws remain unsettled and are being actively litigated in federal courts across the country, some general principles can be set out.

Bribery of Public Officials: Federal anti-bribery laws prohibit offering to give or giving a public official a thing of value in exchange for “official action.” To flip the perspective, federal officials are barred from soliciting or accepting a thing of value in return for committing (or agreeing to commit) an “official act”.

The seminal case on bribery of public officials, McDonnell v. United States, 136 S. Ct. 2355 (2016), holds that the federal bribery statute, 18 U.S.C. § 201, prohibits a public official from “receiv[ing] or accept[ing] anything of value” in exchange for being “influenced in the performance of any official act.” The Court explained that an “official act” is a decision or action on a "question, matter, cause, suit, proceeding or controversy.” After finding that the terms “cause,” “suit,” “proceeding,” and “controversy” “connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination,” the Court analyzed the meaning of the terms “matter” and “question” because those more expansive terms arguably encompassed Governor McDonnell’s conduct.

In sum, the Court held that federal prosecutors must prove two basic elements in an 18 U.S.C. § 201 prosecution alleging official action based on conduct relating to a “matter.” First, the “matter” must involve a “formal exercise of governmental power”—like a “cause,” “suit,” “proceeding,” and “controversy.” More specifically, the “matter” must be pending or anticipated, “focused and concrete,” and “the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” The pursuit of a “broad policy objective,” by contrast, is too “nebulous” to qualify. In McDonnell, the Court rejected, for example, the government’s theory that Governor McDonnell took official action by pursuing a pro-business agenda. That was simply not sufficiently “focused and concrete” to count. Second, the official must act “on” that “matter,” either by exercising decision-making power directly, or by “using his official position” either to “exert pressure” on or “provide advice” to the responsible official, “knowing or intending that such advice will form the basis for an ‘official ac[t]’” by that second official. The McDonnell Court held that setting up a meeting, talking to another official, or organizing an event—without more—does not fit the definition of "official act."

Commercial Bribery: Federal criminal laws not only prohibit bribery of public officials, but they also prohibit bribery and kickbacks in certain commercial settings. The landmark case on point, Skilling v. United States, 561 U.S. 358 (2010), held that prosecutions for violations of the honest services fraud statute, 18 U.S.C. § 1346, may extend only to those who, in violation of a fiduciary duty, participate in a bribery or kickback scheme. This means that a swath of conduct targeted by federal prosecutors pre-Skilling under an honest services theory—conflicts of interest and more general financial self-dealing—are now outside the ambit of honest services fraud so long as there is no evidence of bribes or kickbacks.

The Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1, et seq., which is the topic of a separate page on this website, contains anti-bribery provisions that prohibit, among other things, giving anything of value to a foreign official to secure any improper advantage in order to assist in obtaining or retaining business.

If it were not for the First Amendment, the short answer would be, “yes.” But the First Amendment protects the right to support political causes, whether in the form of campaign contributions or expenditures for issue advocacy. To ensure that protected First Amendment speech is not chilled, the Supreme Court has held that payments for political causes cannot be punished as “bribes” unless they are made “in return for an explicit promise or undertaking by [an] official to perform or not to perform . . . an official act.” McCormick v. United States, 500 U.S. 257, 273 (1991). That is, circumstantial evidence of bribery in the context of speech protected by the First Amendment—e.g., soon after an individual contributes to a politician’s reelection campaign the politician takes official action beneficial to the individual—is not enough to prove a violation of federal bribery laws under McCormick. Instead, the government must show an “an explicit promise or undertaking.”

The Eleventh Circuit Court of Appeals applied McCormick in United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011), a case involving expenditures in an issue advocacy campaign, and found: “In the absence of such an [explicit] agreement on a specific action, even a close-in-time relationship between the [expenditure] and the act will not suffice.” The reference to “specific action”—which requires the government to show that the parties to the alleged explicit bribery agreement identified the act the public official would take at the time they entered the agreement—is another important limitation on the application of federal anti-bribery laws to First Amendment speech. Outside the context of First Amendment speech, at least some courts have found that the federal government can prove a violation of federal anti-bribery laws by showing the parties to an alleged bribery scheme simply agreed that the public official would take favorable action in the future—even if they never discussed or identified the specific actions the public official would take.

In sum, when the government prosecutes expenditures that constitute First Amendment speech under federal anti-bribery laws, several complex issues arise—yet another reason to hire an experienced federal criminal defense lawyer.

Each federal criminal case is different, and there is no one-size-fits-all approach to federal criminal defense. To formulate a successful defense strategy, you need to hire skilled federal criminal defense lawyers to thoroughly analyze the facts and the law and then develop a game plan.

Nevertheless, certain defenses come up in many federal bribery and public corruption cases. And some of those defenses stem from the fact that the federal government is often trying to prove bribery and public corruption through circumstantial evidence (e.g., payments from a businessman to a public official around the time the public official takes official acts beneficial to the businessman’s industry), not direct evidence (e.g., a recording of the businessman saying he was paying the public official to take official acts). Some of the most common defenses are identified below.

Coincidental Timing: In federal bribery cases, prosecutors often ask the jury to conclude that payments made close-in-time to a certain government action were made in exchange for that action. In short, temporal proximity is allegedly proof of a quid pro quo. Thus, it is common for an accused who is contesting her guilt to argue that any temporal proximity is coincidental, and not proof of a quid pro quo. To bolster this line of argument, it is of course helpful to show that the payments were made for legitimate purposes that had nothing to do with the government action at issue.

Not official acts: Following McDonnell’s explanation of what constitutes an “official act,” defendants in federal courts across the country have challenged allegations that they performed—or paid for—official acts. In keeping with the two-step inquiry in McDonnell, many such challenges center on whether there was a “matter” at issue, and even if there were, whether the public official acted “on” that matter by “using his official position” either to “exert pressure” on or “provide advice” to the responsible official, “knowing or intending that such advice will form the basis for an ‘official ac[t]’” by that second official. What precisely constitutes “pressure” or provision of “advice” are hotly disputed questions that courts are currently considering.

No criminal intent: The accused may argue that she did not have criminal intent when she made the payments that are alleged to be bribes. For example, in some cases, the accused may have received an attorney’s advice before making the payment at issue (or accepting the payment at issue). If so, an advice-of-counsel defense may apply. In other cases, the public official may have interpreted an expenditure to be a bribe when the individual who made the payment did not so intend.

First Amendment speech: As explained, the First Amendment provides special protection for expenditures for political causes. Thus, in federal bribery cases centering on campaign contributions, for example, the First Amendment’s heightened protections may provide an effective defense.

No fiduciary duty: Under Skilling, the government must prove that the accused violated a fiduciary duty in order to prove honest services fraud. Thus, an accused who pleads not guilty may challenge that they owed a fiduciary duty.

Not a bribe or kickback: Because Skilling requires proof of a bribe or kickback, many contested cases alleging honest services fraud raise questions about whether certain expenditures were in fact a bribe or a kickback.

A variety of federal laws address bribery and public corruption, but some of the most commonly used are 18 U.S.C. § 201 (bribery of federal public officials), 18 U.S.C. § 666 (federal programs bribery), 18 U.S.C. 1346 (honest services fraud), and 15 U.S.C. § 78dd-1, et seq. (Foreign Corrupt Practices Act).

If you have a matter that you would like to discuss, please contact us at (404) 658-9070.