Bribery and Public Corruption

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.