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  •   Court Narrows Gifts Law in Espy Ruling

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, April 28, 1999; Page A1

    The Supreme Court ruled yesterday that it is not a crime to provide public officials with gifts or free meals unless they are aimed at rewarding a specific action by the official.

    By a unanimous vote in a case of great consequence for political Washington, the justices rejected arguments by independent counsel Donald Smaltz that someone can violate a federal illegal-gratuities statute merely by bestowing a gift on a public official because of that person's position.

    The court set a higher bar for prosecutors trying to make a case against people lavishing gifts on officials, while rejecting the conviction of a California cooperative accused of illegally giving sports tickets, meals and other gifts to then-Agriculture Secretary Mike Espy.

    At issue was a criminal statute that bars illegal gratuities and dictates the circumstances under which individuals or companies can give gifts to members of Congress, Cabinet officers and other government officials in a position to influence national policy. The law makes it a crime to give a gift to any public official "for or because of any official act performed or to be performed."

    In looking at how close the link has to be between the gifts given and any official actions taken, some courts have ruled that no connection is necessary and that simply giving a gift to an official in a position to make decisions is enough to constitute a crime.

    Yesterday's decision offers ample latitude to lobbyists trying to secure access in the nation's capital and makes it harder to prosecute someone under the statute by requiring prosecutors to prove the gift was connected to a specific official action.

    Lobbyists praised the ruling, saying that Smaltz's narrow interpretation of the statute would have criminalized legitimate practices aimed at influencing policy. "An aggressive view of the statute . . . can't be tolerated in an elected democratic government," said Samuel Buffone, an attorney for the American League of Lobbyists.

    But Smaltz said he feared that the line drawn by the court "allows too much latitude to those who would attempt to buy governmental favor."

    Smaltz was backed by the Justice Department in arguing for a lower threshold for prosecution. But that approach, Justice Antonin Scalia wrote for the court, "would criminalize a high school principal's gift of a school baseball cap to the Secretary of Education, by reason of his office."

    Scalia emphasized that the law's language and a myriad of administrative and criminal rules targeting impermissible gifts dictate that the statute be narrowly read. "A statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should be reasonably taken to be the latter."

    He distinguished the illegal gratuity from bribery, noting that bribery requires a quid pro quo -- that is, a gift specifically in exchange for an official act. An illegal gratuity may be "merely a reward for some future act . . . or for a past act."

    As part of Smaltz's four-year investigation of Espy, Sun-Diamond Growers of California had been charged with giving the agriculture secretary about $5,900 in illegal gratuities: tickets to the 1993 U.S. Open tennis tournament, luggage, meals, and a framed print and crystal ball. Espy was forced from office in 1994 due to allegations of corruption.

    Jurors found the fruit-and-nut cooperative guilty in 1996 after being told they did not need to find a link between the gifts and any action by Espy. In a separate trial, Espy was acquitted last year of accepting illegal gratuities.

    The D.C. Circuit Court of Appeals overturned Sun-Diamond's conviction, declaring there must be some official act that benefited the company or that the co-op hoped to benefit from. The desire of the company to ingratiate itself with the official was not enough.

    In affirming that decision yesterday, the justices suggested that Sun-Diamond should not have been indicted in the first place without Smaltz's first claiming a connection between the gifts and an action.

    Scalia said that, under the statute, a specific official act had to be identified and proved. He said any alternative reading would lead to "peculiar results," such as the criminalizing of "token gifts to the president based on his official position and not linked to any identifiable act."

    Rejecting the notion that the court's interpretation would take the teeth out of the law, particularly as it applies to officials not yet on the job, Scalia offered this example: A large computer company that plans to merge with another large computer firm gives a gift to the person nominated to head the Justice Department's antitrust division, a man who had indicated approval of the merger. "It would be quite possible for a jury to find that the gift was made 'for or because of' the person's anticipated decision, once he is in office, not to challenge the merger," Scalia wrote.

    Eric Bloom, an attorney for Sun-Diamond, praised the decision, asserting, "We are confident that the conduct for which Sun-Diamond was charged is not the type of conduct Congress sought to criminalize."

    Said Smaltz: "For those who believe that no one should be allowed to give gifts to public officials to purchase goodwill or curry favor, . . . any future refinement of this law must come from Congress, or from the Office of Government Ethics, whose regulations govern the behavior of governmental officials in the Executive Branch."

    © Copyright 1999 The Washington Post Company

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