Second, did Vitter act “corruptly”? The bribery statute applies only when someone acts corruptly. This suggests there are instances in which someone can offer a government official something of value with the intent to influence an official act but not do so “corruptly.” Indeed, courts have acknowledged that the statute’s use of the word “corruptly” implies exactly that. As the Department of Justice’s own Criminal Resource Manual has stated regarding the word “corruptly” in the federal bank bribery statute, “Congress intended to limit the statute to ‘corrupt’ transactions.”
Here, again, the absence of any conviction based on an exchange of official acts raises a question as to whether Vitter acted “corruptly” under the statute. Government officials frequently condition their official acts on the official acts of other government officials. Yet no one has ever been convicted of a crime for it. Is this because it is deemed “corrupt” to do so? Indeed, it seems unlikely Vitter himself believed he was acting corruptly. He communicated to Salazar in a letter posted on his website, not secretly behind closed doors.
To break with this history and to start criminalizing exchanges of official acts could have significant consequences. Suppose, for example, that a legislator believes a government official is not performing his duties adequately. That belief would seem to be a legitimate reason to oppose increasing the official’s salary. If that is the case, should it be a crime for the legislator to communicate the reason to the government official?
To return to your question, then, is what Vitter did a crime? Let’s put it this way. I do not expect he will be going to jail for it.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Lois Lerner, director of exempt organizations for the IRS, arrives for a House Oversight and Government Reform Committee hearing on the investigation of the IRS' targeting of political groups. Lerner invoked her Fifth Amendment right to not testify and caused a protest from some committee members when she offered an opening statement and engaged in dialogue with members before invoking the right.
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