Is the Bartering of Official Acts a Criminal Act?
Q: I have a question about the law on bribery. I heard that someone had filed an ethics complaint against Sen. David Vitter (R-La.), claiming he had committed a crime because he threatened to vote against a pay increase for a Cabinet member unless the member took an action Vitter wanted. As a Senate staffer, I need to know: Is this really a crime?
A: Last week, Citizens for Responsibility and Ethics in Washington filed an ethics complaint against Vitter with the Senate Ethics Committee. The complaint alleges Vitter committed bribery by threatening to block a proposed pay raise for Interior Secretary Ken Salazar unless Salazar’s department issued a minimum number of deep-water exploratory permits in the Gulf, an action strongly advocated by Vitter.
The key facts of this case are not in dispute, as they played out in public. In late May, Vitter’s website posted a letter the Senator had sent to Salazar. The letter said Vitter had been asked to support legislation granting Salazar a $20,000 salary increase. Vitter wrote: “Given the complete unsatisfactory pace of your department’s issuance of new deepwater exploratory permits in the Gulf, I cannot possibly give my assent.” Later in the letter, Vitter said that when the rate of new deepwater permits increases to six per month, “I will end my efforts to block your salary increase.”
As an aside, Salazar’s pay raise was proposed to make his salary equal to that of other Cabinet members. When a Senator leaves the Senate for a Cabinet post, the Senator is typically paid at his lower Senate salary level until his Senate term would have expired. This is in part to prevent Senators from voting to increase the salary for a Cabinet position and then moving into that same position. In Salazar’s case, he was elected to the Senate in 2004, and his term would have ended last year had he not left the Senate to join President Barack Obama’s Cabinet. The bill to increase Salazar’s pay would have raised his salary from about $180,000 to about $200,000, to square it with the salaries of others in the Cabinet.
CREW’s letter states that Vitter’s conduct is “exactly the type of quid pro quo the bribery statute was intended to prevent.” But is it?
The federal bribery statute makes it a crime for someone to corruptly give, offer or promise “anything of value” to a public official with intent to influence an official act.
In the classic case of bribery, someone provides money to a government official in exchange for an official act. Suppose, for example, someone had offered Salazar $20,000 in cash in exchange for a deepwater exploratory permit.
But is this the same thing? To answer that question, there are at least two other questions to ask. First, did Vitter offer Salazar “anything of value”? CREW’s complaint says he did. Specifically, the complaint states Vitter attempted “to induce official action by the Secretary by offering to support legislation granting his $19,600 pay raise.”
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.