Policy

POLICY

Public Corruption: Whittling Away the Illegal Gratuities Statute

At one time, the illegal gratuities statute allowed prosecutors to target officials who had accepted gifts or favors "for or because" of official acts (18 U.S.C. § 201(c)(1)).  Decisions in two cases, one in the Supreme Court and the other in the D.C. Circuit Court of Appeals, have effectively rendered the statute ineffective.  United States v. Sun-Diamond Growers, 526 U.S. 398 (1999) and United States v. Valdes, 475 F.3d 1319 (D.C. Cir. 2007) have created an unrealistically high bar for prosecution of public officials in cases where the explicit quid pro quo required for a bribery conviction does not exist. 

What distinguishes an illegal gratuity from a bribe turns on the mens rea requirement.  Congress intended the illegal gratuities statute to prohibit any gifts given or received "for or because of any official act performed or to be performed."  A bribe, conversely, is an act whereby the giver intends "to influence an official act," and the public official intends "to be influenced" in an official act. 

Put another way, the illegal gratuities statutes was intended to proscribe behavior that did not rise to the level of a bribe, but nonetheless gave the appearance of impropriety.

In Sun-Diamond, the Supreme Court ruled that the illegal gratuities statute requires that a specific official act be identified and proved in connection to a gift to a public official.  In other words, the government must provide another element - a link - between the gratuity and the official act.  Prior to this decision, the mere authority to act on pending matters in favor of the donor was generally held to be sufficient.  The addition of this new element has made the crime of illegal gratuities virtually indistinguishable from bribery. 

The lower court in Sun-Diamond  had it right: "the Government must [only] show that Defendant acted simply because of [the individual's] official position."  Congress should amend the law to make clear that illegal gratuities are money or gifts given to a public official not only for "official acts," but also "for or because of" an official's position.

United States v. Valdes further weakened the illegal gratuities statute.  Mr. Valdes was a D.C. Metropolitan Police detective convicted of receiving illegal cash gratuities in exchange for disclosing automobile registration and warrant information from the law enforcement database to an undercover FBI informant posing as a judge.  In Valdes, the court ruled that the defendant's actions were not covered by the term "official act" in the illegal gratuities statute because his actions were not part of a pending matter and not part of his assigned official duties.  While the court may have been technically correct in assessing Mr. Valdes' job description, Congress  intended the statute to reach precisely this sort of behavior.  Under the Valdes court's theory, if a public official has no obligation to act on a particular matter, providing that official with a gratuity for doing so is perfectly legal.

Congress should overturn this cramped construction of "official act."