Albert W. Alschuler is the Julius Kreeger professor emeritus of criminal law and criminology at the University of Chicago Law School.
Suppose you’re a senator, and suppose you have a wealthy friend. Suppose he was your friend long before you were a senator. Suppose he has entertained you and your family at his vacation home in the Caribbean. Suppose he has put you up at a nice hotel in Paris. Suppose he has been a major contributor to your campaigns. Your friend has done these favors without ever asking you for anything, but now he says that a government agency is treating him unfairly. His complaints are reasonable, and he wants to tell top agency officials his side of the story. Will you make a phone call and ask the officials to hear him out? Or will you tell him to take a hike? If you make the call, will you be guilty of bribery? Will your friend be guilty of bribery, too?
The case of Sen. Robert Menendez (D-N.J.) and Salomon Melgen is currently on trial in a federal court in New Jersey. This week a judge rejected a defense bid for dismissal. There’s more to that case than to yours, but your situation poses some of the same legal issues and conundrums. What’s an “official act”? Is proof of a “stream of benefits” in exchange for unspecified official acts enough? What’s a “quid pro quo”?
Recognizing that elected officials often make phone calls like yours, and not wishing to send them all to prison, the Supreme Court ruled last year in the case of former Virginia governor Bob McDonnell that setting up a meeting or calling another official does not qualify as an official act. Moreover, urging another official to take an action isn’t sufficient unless one intends to exert “pressure” or “provide advice knowing or intending such advice to form the basis for” the other official’s action.
If someone were to pay the president’s chief of staff $1 million to set up a meeting with the president, most people would call it bribery. Only a few people would not, and all of them seem to be on the Supreme Court. Under the McDonnell decision, any official can publish a price list for providing access to other officials without violating the federal bribery statute. Moreover, the court left its operative standard — “pressure” — undefined. Perhaps pressure is like pornography; you know it when you see it.
The judge presiding over the Menendez-Melgen trial ruled this week that the McDonnell decision does not invalidate the “stream of benefits” bribery theory on which some of the government’s charges depend. As one court explained it, “Where there is a stream of benefits given by a person to favor a public official, it need not be shown that any specific benefit was given in exchange for any specific act.” Prosecutors speak of retainers, meal plans and open bars.
In bribery as in baseball, there seems to be no good reason that a transaction may not include a player to be named later. If a public official named Genie were to agree to grant three wishes in exchange for a deposit to her Cayman Islands bank account, she surely should be convicted of bribery.
But the “stream of benefits” theory can invite slippage. It can cause prosecutors, judges and juries to lose sight of the requirement of a quid pro quo or corrupt understanding at the time a benefit is received. No definition of bribery includes favoritism for someone who has supplied a benefit in the past. If an official were subject to imprisonment whenever a jury could be persuaded that that he had acted deliberately to benefit someone who once did a favor for him, only a fool would take the job. A payment cannot become a bribe retroactively. For that reason, quite apart from whether your phone call on behalf of your wealthy friend qualified as an official act, and quite apart from whether a “stream of benefits” theory is appropriate, your case probably should not go to the jury.
The problem is greatest when, as in the Menendez-Melgen case, some of the alleged bribes consist of campaign contributions. Prosecutors and jurors could easily infer corruption, for example, when a widget manufacturer contributed to a legislator’s campaign and the legislator then supported widget subsidies. The risk of criminal punishment could discourage contributions and running for office, and the law could sweep broadly enough to allow prosecutors to pick their targets.
The Supreme Court has, in fact, distinguished campaign contributions from other payments. It has said that campaign contributions may be treated as bribes only when “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” This standard may put a premium on winks and nods, but the alternative could be worse.
Bribery law requires after-the-fact assessments of motives and understandings, and even when the government’s evidence does not show bribery, it is likely to show favoritism and other unattractive conduct. Jurors, many of whom believed before they entered the jury box that most politicians are corrupt, are likely to convict. Judges provide little protection, allowing jurors to draw “inferences” whenever motives just might have been bad and corrupt understandings just might have existed. At the same time, this law leaves many functional equivalents of bribery untouched. It sweeps too broadly and not broadly enough at the same time. There seems to be no Goldilocks position.
Unlike bribery law, ethical codes and campaign finance regulations can give officials clear rules in advance, but Citizens United and other decisions have largely blocked this fairer and more effective route to the minimization of corruption. Perhaps your wealthy friend should not have been allowed to make those gifts and campaign contributions in the first place.