Feb. 9, 2016 SIGN IN | REGISTER

Is the Bartering of Official Acts a Criminal Act?

Note that support of pay-increase legislation is itself an official act. The complaint, in essence, alleges Vitter committed bribery by offering one official act — Vitter’s vote in support of Salazar’s pay raise — in exchange for another — the issuance of new permits by Salazar’s department. Yet, a proposed exchange of official acts has never served as the basis for a federal bribery conviction. No court has ever concluded that the “thing of value” under the federal bribery statute could itself be an official act.

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.

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