Legal Commentary and Analysis by Kendall Coffey
Kendall Coffey
When
local political figures are in the federal bull's eye, the specter of
public corruption casts a long shadow over a community's political and
business leadership. The flipside, though, of bad times for politicians
is good news for federal law enforcement as it has combined enhanced
resources with strengthening federal laws to achieve a striking series
of successes. While many communities are witnessing arrests at City
Hall, nationally, the names include present and former Congressional
figures such as Robert Ney and William Jefferson. Collectively, these
developments signal the arrival of a resurgence in combating corruption
that has been years in the making and is national in scope.
While public corruption is anything but a victimless crime, it presents
unique challenges to prosecutors and the police because the victims of
outstretched politician’s palms are rarely willing to step forward
against powerful public officials. Thus, the Department of Justice has
long recognized that undercover operations are "especially effective in
public corruption investigations."
In the late 1970's, the Federal Bureau of Investigation used a fake Arab
Sheikh to entice various members of Congress into agreeing to accept
bribes, mostly on video tape. Despite the spectacular success of the
"ABSCAM" investigation, which by 1981 had netted convictions from six
members of the House of Representatives and one U.S. Senator, it yielded
little applause from Congress. Instead, Congressional committees
criticized the FBI's tactics, finding that the "use of undercover
technique creates serious risks to citizens' property, privacy, and
civil liberties..." Responding to such concerns, the Attorney General
imposed a broad array of pre-conditions limiting future attempts to use
a "sting" operation to "set up" a public official.
As a result, many prosecutors and agents were feeling more chilled than
thrilled with the reaction of Congress and the Attorney General to
ABSCAM. Later in the 1980's, the courts dealt their own setbacks to
corruption prosecutions by cutting back on two of the primary legal
weapons used in federal indictments. Traditionally, federal authorities
employ mail fraud laws by successfully arguing that schemes encompassing
corrupt politicians effected a theft of the public's right to "the
honest services" of a public officer. In 1987, though, the Supreme Court
erased this tool, finding that the mail fraud statute did not expressly
include "theft of honest services" among the acts that constituted
crimes. With one traditional tool being judicially vaporized, another
was downsized as the Supreme Court found in 1991 that bribery could not
be prosecuted under the Hobbs Act, a criminal statute frequently
utilized against corruption, unless the scenario included an "explicit
quid pro quo." Because corruption does not always include the specific
details of a bribery scheme, the result of this increased requirement
for more proof was that many public dealings would not be provably
criminal even if they were ethically abysmal.
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PUBLIC CORRUPTION: From Setbacks to Federal Step-ups