Q: A friend and I have been following former Rep. William Jefferson’s (D-La.) appeal of his conviction for bribery. Over the holidays, I read that the appeal could significantly impact federal law regarding bribery. Can you help me understand what is at stake in Jefferson’s appeal?
A: Say you are a toothbrush manufacturer and you go to your local Congressman and offer him $10,000 to vote for legislation promoting the use of toothbrushes. You would be guilty of bribery under federal law.
Say, instead, that you go to your local Congressman and offer him $10,000 to brush his own teeth. You would not be guilty of bribery.
What’s the difference? The answer lies in the definition of bribery, which is at the heart of one of Jefferson’s main challenges to his conviction. But first, some context.
In November 2009, Jefferson was convicted of multiple felonies resulting from allegedly accepting bribes while a Member of Congress for performing constituent services, including helping several companies do business in the United States and West Africa. The charges are primarily based on violations of the federal bribery statute and a law prohibiting what is known as “honest-services wire fraud.” Jefferson’s challenges to his honest-service wire fraud alone are enough fodder for a column. Your question concerns bribery, so let’s focus on that.
To convict a public official under the federal bribery statute, the government must prove that the official solicited or accepted something of value in return for “being influenced in the performance of any official act.” At issue in Jefferson’s appeal is what counts as an official act. Voting on toothbrush legislation is an official act. Brushing one’s teeth is not.
Jefferson contends that his trial judge improperly instructed the jury regarding the definition of an official act and that resulted in his conviction. The judge first told the jury the statutory definition of an official act — any decision or action on any matter that may be pending or brought before a public official in his official capacity. Then, at the government’s urging and over Jefferson’s objection, the judge told the jury that official acts include activities “clearly established by settled practice as part of a public official’s position.”
Jefferson argues that this instruction was erroneous because it would make the bribery statute unconstitutionally vague. Jefferson particularly focuses on the phrase “settled practice.” What does it mean for a practice to be settled for a Member of Congress, he asks? That a majority of Members do it? That one or two Members do? How often? And can a practice that was once settled become unsettled? Jefferson argues that if an “official act” were to include anything that could be construed as a “settled practice,” officials would not have sufficient notice of conduct prohibited by the bribery statute.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.