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  •   Court Shows Reluctance on Strict Gifts Law

    Supreme Court

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, March 3, 1999; Page A2

    In a case that cuts to the core of political business in Washington, the Supreme Court appeared poised yesterday to reject a position by independent counsel Donald C. Smaltz that would prevent lobbyists from buying meals and bestowing gifts on public officials in a multitude of situations.

    Key justices including Sandra Day O'Connor suggested they believe that Smaltz's interpretation of an illegal gratuities statute goes too far in trying to crack down on unlawful influence peddling and that it could hamper permissible relationships between lawmakers and the public.

    "It isn't baking brownies for a senator, or knitting a pair of socks for an official, is it?" O'Connor declared at one point about the target of the illegal gratuities law.

    Smaltz, who won a conviction against a California agriculture cooperative that gave sports tickets, meals and other gifts to then-Agriculture Secretary Mike Espy, contends the law makes it a crime to give anything of value to a public official simply because of the person's position.

    However, the American League of Lobbyists contends that such a standard would broadly criminalize a range of harmless gift-giving and undercut an individual's legitimate right to curry general goodwill, keep doors open and try to influence government.

    The statute forbids the bestowing of gifts "for or because of any official act performed or to be performed" by a member of Congress, Cabinet officer or other government official in a position to influence national policy. Smaltz accused Sun-Diamond Growers of giving Espy about $5,900 in unlawful gratuities, including tickets to the U.S. Open tennis tournament, luggage, meals, a framed print and a crystal bowl. A jury found the company guilty in 1996 after jurors were instructed they need not find that the gifts related in any way to an official act.

    The U.S. Court of Appeals for the D.C. Circuit overturned the conviction last year, ruling that the statute requires the gift to either reward some past action or enhance the likelihood of some future act. The D.C. Circuit said gifts motivated merely by the giver's desire to ingratiate himself with the official should be allowed a narrower view of what constitutes an illegal act than taken by other federal appeals courts.

    In appealing that ruling, deputy independent counsel Robert W. Ray told the justices yesterday that an official's position automatically affords him the ability to act on behalf of someone who offers a gift. "The prospect of an official act" is enough to make a gift illegal, Ray said.

    O'Connor, a key swing vote on the court and, as a former Arizona state legislator, the only member who ever served as an elected official, suggested the law requires proof of some "link" between the gift and some action rendered.

    In a similar vein, Justice Stephen G. Breyer worried that senior citizens could be prosecuted for sending gifts to a senator who happens to generally support their agenda. "Why have such an expansive reading of a criminal statute?" he said.

    He asked whether a group of farmers would be acting unlawfully by providing lunch to the secretary of agriculture so he could talk about his policies, saying, "I would have thought it was good for the secretary of agriculture" to reach out.

    Chief Justice William H. Rehnquist questioned whether the independent counsel's interpretation conflicts with the reality that some groups make it part of their regular, and acceptable, business to confer gifts on lawmakers or that some individuals give football tickets to officials simply for the prestige of sitting with them at a game.

    Eric W. Bloom, representing Sun-Diamond, emphasized that gifts are illegal only if given for some specific identifiable act, not merely to gain access and keep open lines of communication. He distinguished the illegal gratuities statute from bribery law by saying it does not require an agreed-upon exchange of gift and action. Rather, he said, the statute dictates only that a giver be rewarding some action taken or generally promised but not based on any deal.

    In response to a hypothetical example by Justice Antonin Scalia about an AT&T chairman who happened to give $2 million to the chief of the Federal Communication Commission, Bloom insisted only gifts conferred for specific deeds, not with a casual hope of favorable treatment, are covered.

    Smaltz prosecuted Sun-Diamond Growers, one of the nation's largest food cooperatives, as part of a four-year investigation of Espy, who was forced from office in 1994 amid allegations of corruption. Espy was acquitted in December of all charges against him. A ruling in the case of United States v. Sun-Diamond Growers is expected by summer.

    Separately, the Supreme Court by a 7 to 2 vote broadly interpreted a statute that makes carjacking "with the intent to cause death or serious bodily harm" a federal crime. Upholding the conviction of a man who brandished a gun but said he never intended to harm anybody, the court ruled that the law covers all carjackings carried out with a deliberate threat of violence, rather than only the rare case in which the defendant at the outset intends to hurt the driver or passengers.

    Scalia, joined by Justice Clarence Thomas, dissented in Holloway v. United States, saying the law covers only carjackings with an unconditional intention to hurt or kill. In a strikingly personal note, Scalia wrote that he has "a friend whose father was killed and whose mother was nearly killed, in just such an incident after the car had already been handed over."

    "It is not at all implausible that Congress should direct its attention to this particularly savage sort of carjacking where killing the driver is part of the intended crime," he added.

    © Copyright 1999 The Washington Post Company

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