Can The Court Set A Precedent That Could Limit Lobbyist Spending & Influence Peddling?

D.C. Circuit to Clarify Bribery Statute

If I understand what this article and the DC Circuit Court of Appeals is saying, anyone taking maoney from a lobbyist or other influence peddler may be in violation of a federal statute. While this only applies to the District of Columbia, federal property, federal buildings and facilities (including congress critter offices at home and in DC), and to sitting congress critters and elected officials, it is an interesting read of the law.

With questions about lobbyists' influence over public officials rocking the nation's capital, an en banc U.S. Court of Appeals for the D.C. Circuit is poised to address the reach of the federal statute that prevents government officials from accepting private gifts for performing official acts.

God only knows how bad the bribery and influence peddling scandals have gotten over the past 10 years (or even longer). But here is a law that may actually stop the lobbyists in their tracks by charging the government officials with a criminal act for taking "something of value" in exchange for an act or duty of office. Could this include even the act of providing access to various committee hearings and congressional offices that lobbyists have on a daily basis and most citizens never get? One could only hope.

The result has potentially far-reaching implications for the federal work force and political corruption cases generally -- and for the lawyers who defend or prosecute them.

At first glance, United States v. Valdes seems to be a routine, relatively low-level gratuities case. Nelson Valdes, a Washington, D.C., Metropolitan Police Department detective, accepted several hundred dollars from an FBI informant, William Blake, as an apparent reward for accessing an official police database and providing Blake with the information from it.

A close look at this law and the court's interpretation of the statute and regulations may indeed be a tool for stopping the influence peddling cold... at least for a short while. Perhaps long enough to cast out the whole lot of idiots and cowards we have running the show in DC.

Indicted on three counts of bribery, Valdes was ultimately convicted of three counts of the lesser-included offense of receipt of an illegal gratuity. The illegal gratuities statute, 18 U.S.C. Chapter 1, §201(c)(1)(B), prohibits a public official from demanding, seeking, receiving, accepting, or agreeing to receive or accept "anything of value personally for or because of any official act performed or to be performed by such public official or person."

An interesting approach...

On appeal, however, a sharply divided three-judge panel of the D.C. Circuit reversed Valdes' conviction. The judicial divide makes clear that the legal questions raised in Valdes are anything but routine. The court reached its decision over the objections of Judge Karen LeCraft Henderson. Her scathing dissent warned that the majority was rendering "payoffs" legal and embracing the likes of the notorious Capt. Mark McCluskey, the corrupt cop in "The Godfather" who took money for ignoring local businesses' infractions and offering them "protection."

I agree with Judge LeCraft. And apparently the matter raised enough issues that it is getting another look-see by another appellate panel.

Now the stage is set for further review. On May 15 the D.C. Circuit granted en banc review, and oral argument was heard on Sept. 28.

An "en banc review" means that all the judges sitting on that particular appellate court will be reviewing this matter and each sitting judge will be given a vote and a voice by writing an affirmation or dissent. Which may then lead to a review by SCOTUS since it is based upon a procedure defined by SCOTUS procedures.

Valdes raises critical questions about the scope of the gratuities statute and, more specifically, the definition of "official act." The phrase is statutorily defined, for purposes of both the bribery and gratuities statutes, as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which at the time may be pending, or which may be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." Unfortunately, this definition provides little real-world guidance to public officials trying to stay within the law.

The parameters for the terms "bribery" and "gratuity" may indeed place Justices Thomas, Scalia and members of congress at risk for prosecution, censure and/or impeachment.

The D.C. Circuit's forthcoming answers, especially in a venue that has historically been the location for many of this country's most significant public corruption investigations, will be of fundamental importance to millions of federal employees whose actions are potentially subject to prosecution and who thus must act accordingly.

According to the opinion, in February 2001, Valdes and Blake met in a D.C. nightclub. Blake was introduced to Valdes as "the judge," and Valdes introduced himself as a D.C. police detective. At their second meeting at the same club, Valdes gave Blake his card and cell phone number, "just in case [Blake] ever needed a favor."

Would this be considered overly broad and too arbitrary or vague?

The FBI then entered fictitious information, including the names of fictitious individuals, into state computer databases; these databases linked to the Washington Area Law Enforcement System (WALES). The FBI instructed informant Blake to see if Valdes would provide him with police information. Over the next month, Valdes, at Blake's request, used WALES several times to look up license plates and warrant information for the fictitious individuals. In return, Blake gave Valdes several hundred dollars.

Wow! I am impressed that the FBI has gotten involved with a corruption sting.

On appeal, Valdes argued that logging on to WALES to retrieve public information did not constitute an "official act." Specifically, he contends that it was not a "decision or action" falling within the statutory definition of "official act," and there was no "question, matter, cause, suit, proceeding or controversy" related to any of the (fictitious) individuals that was or could be pending before Valdes.

But WALES is a database that is not ordinarily available to the general public, so Valdes was acting in his official capacity and provided a service for compensation.

The government countered that accessing WALES, a system available only to authorized users who had undergone training and certification requirements, was an "action," and that by using police resources to perform the searches, Valdes was acting on a "matter brought before him in his official capacity."

Indeed, Valdes was acting within the scope of powers and authorized access to information in his role as a police office within DC.

Siding with Valdes, the D.C. Circuit held that the government failed to show that he engaged in an official act. Valdes' acts were not, the court held, "a 'decision or action' that directly affects any formal government decision made in fulfillment of government's public responsibilities."

But that is not how the statute reads! The statute is very clearly written to include direct action and indirect action, actions that are specific to one's access and authority as a public official, or even an offer of something of value... and database access is somethign of value and so is the offer for compensation. Even the IRS recognizes that a "quid pro quo" arrangement in terms of bartering (including "favors") is somethign of value.

The Valdes majority relied heavily on the Supreme Court's seminal 1999 decision in United States v. Sun-Diamond Growers. In doing so, it raised significant questions about the the parameters of both the bribery and gratuities statutes -- which both rely on the same definition of "official act."

While the appellate court relied upon the Sun-Diamond precedent, it seemed to ignore the language of the statute. It is also rather odd that the two senior judges are pro-business, pro-Religious Right, Republican appointees.

In Sun-Diamond the Supreme Court addressed the question of whether giving a gratuity to a public official, in the absence of a specific connection between the giver's intent and a particular, specific act by the recipient, was sufficient to support a gratuities conviction.

I think Judges Edwards and Williams screwed the pooch on this one.

Noting that the drafters took pains to include an official-act requirement in the statute, Justice Antonin Scalia, writing for a unanimous Supreme Court, stated, "The insistence upon an official act, carefully defined, seems pregnant with the requirement that some particular act be identified and proved." Accordingly, the Court held that the government must prove a link between the thing of value conferred and a "specific 'official act' for or because of which it was given" to sustain a gratuities conviction.

Indeed, I think there was an overt official act present in the case and these two Republican appointees chose to rely on a precedent that does not fully apply rather than the specific language of the statute.

A much-discussed portion of the Sun-Diamond opinion focused on token gifts. In concluding that the gratuities statute required a connection to a specific act, Sun-Diamond reasoned that "absurdities" would result without such a requirement. For example, the Court reasoned that the statute would criminalize "token gifts," such as jerseys given to the president by sports teams during visits to the White House; a school baseball hat given to the secretary of education upon a visit to the school; or a complimentary lunch for the secretary of agriculture provided in connection with a speech to farmers about agriculture policy.

Personally, I see nothing errant in the idea of prohibiting even token gifts when an overt official act is involved in a "quid pro quo" manner.

Sun-Diamond further reasoned that while these acts "are assuredly 'official acts' in some sense," they are not, in fact, "'official acts' within the meaning of the statute." The decision stated that it is possible to eliminate the "absurdities" (the jersey, the baseball hat, the free lunch) "through the definition" of an "official act."

I think someone has screwed the pooch in the Sun-Diamond decision as well. Some sports memorabilia can be quite valuable. A shirt, jersey, jacket or other "token gift" signed by the right sports celebrity could garner thousands of dollars in some markets. Perhaps the Justices and Judges need to watch the PBS Antiques Roadhouse series some time.

Although the Sun-Diamond Court did not offer clear guidance on how to define "official act," the Valdes majority relied on the Sun-Diamond absurdities discussion and found that conviction for Valdes' WALES inquiries fell into Sun-Diamond's list of absurdities. It concluded that "[a]ll the officials' acts (the WALES queries, ceremony, visit, or speech) have in common that none is a 'decision or action' that directly affects any formal government decision made in fulfillment of government's public responsibilities."

Definitely a decision that seems to favor the power brokers and influence peddlers. Could this be the judicial activism that the Republicans speak about so often?

In defining "official act," the Valdes majority also found that "official act" entails some level of formality: "[t]he words are far from self-defining, but they suggest at least a rudimentary degree of formality, such as would be associated with a decision or action directly related to an adjudication, a license issuance (or withdrawal or modification), an investigation, a procurement, or a policy adoption."

But the language in the statute is very specific in defining even the intent of providing a service or act for anything of value. As a lawyer once told me, even a paperclip has value.

Henderson, however, contended that "the majority puts all its eggs in the Sun-Diamond basket, and, in so doing, scrambles them." Arguing that the Sun-Diamond absurdities discussion was mere dicta, Henderson lamented the imposition of an "amorphous" test based on the "formality" of the action taken, but also noted that Valdes' actions should qualify as "official acts" even under the "new" test.

Some sound logic coming out of Judge Henderson.

Henderson reasoned that Valdes used the restricted WALES police database on which he was trained and certified and accepted money for the information produced. WALES users, the government argued, are trained that WALES can be "used for criminal purposes only," and its use is "restricted to those persons responsible for the administration of justice." Accessing WALES was a routine part of Valdes' official duties, and accessing police databases is the "very type of 'questions' and 'matters' that detectives handle on a daily basis."

This appears to be a prima facie case of meeting the criteria of the statute. This will be an interesting case to follow.