Posted November 15, 2007 by Tara Malloy

In the Wake of Valdes

The following opinion piece was published in Legal Times on November 12, 2007.

THANKS, PLUS CASH

 CORRUPT OFFICIALS SHOULDN'T ESCAPE THROUGH A LOOPHOLE IN THE GRATUITIES LAW

Two members of the 109th Congress are serving time in prisons for their dodgy dealings with lobbyists. Many more face indictments or are under investigation. And the sheer number of the convictions, indictments, and investigations suggests that this is only the tip of the iceberg.

Unfortunately, at the same time, prosecutors are moving forward with fewer avenues to pursue public integrity cases after a February decision by the U.S. Court of Appeals for the D.C. Circuit.

But some good news: Whether from genuine commitment to reform or simply institutional embarrassment, the Senate is now considering remedial legislation that would fix the problem created by the D.C. Circuit. [ For more on this bill, see 'Senate Bill Shores Up Bribery Law,' Page 1. ] In the wake of the decision, prosecutors need the Senate to pass its pending bill and for the House to follow suit.

The D.C. Circuit case is United States v. Valdes (2007), and its narrow interpretation of the federal gratuities statute means that prosecutors have a less effective weapon in their fight against public corruption. In this 7-5 en banc decision, the court reversed the conviction of police officer Nelson Valdes on three counts of accepting an illegal gratuity because it found that Valdes had not committed any 'official act' within the meaning of the gratuities statute, 18 U.S.C. §201(c)(1)(B).

Slightly more than a year ago, my colleague at the Campaign Legal Center, Meredith McGehee, argued in these pages ('A Little White Bribe: Don't Let Officials Take Gifts and Money Without Fear of Prosecution,' Sept. 25, 2006, Page 69) that the court's overly narrow interpretation of the gratuities statute would 'imped[e] prosecutors' ability to convict public officials who accept gifts and favors from private parties' and allow public officials to accept such favors 'with little fear of prosecution.'

As it turns out, reformers were not far off in their predictions.

UNOFFICIAL BRIBES

Valdes was convicted of accepting a $400 gratuity from an undercover FBI informant in exchange for acquiring vehicle registration and arrest warrant information from a restricted police database.

The D.C. Circuit overturned his conviction because the majority of the en banc panel found that the government had failed to show that Valdes had committed an 'official act.' In this context, an official act means 'any decision or action on any question, matter, cause, suit, proceeding or controversy . . . which may by law be brought before any public official, in such official's official capacity.'

The majority concluded that official acts consisted only of those 'questions or matters' that 'the government ha[s] authority to decide' or 'normally resolves.' Because Valdes' illicit procurement of restricted police information was not part of his official duties and obviously not a matter the police 'normally resolved,' the majority determined that Valdes' actions were not 'official acts.'

As the Campaign Legal Center argued to the D.C. Circuit in an amicus brief at the time, an overly restrictive understanding of what constitutes an 'official act' would undermine the gratuities statute, allowing public officials to accept payment for performing a wide swath of informal public functions without fear of criminal sanction.

We warned, 'To permit public officials to use their position of public trust to line their pockets with cash and escape prosecution under the anti-gratuities statute because the action fails to meet some vague degree of ' formality' makes a mockery out of the law's attempt to punish corruption.'

THE MOCKERY BEGINS

It has not taken long for this 'mockery' of the law to begin.

One of the most notorious disgraced congressmen, Rep. William Jefferson (D-La.), has recently turned to Valdes as a defense in his ongoing criminal prosecution for bribery, wire fraud, and a litany of related charges. Jefferson is accused of receiving more than $400,000 in bribes from businesses--and soliciting millions more--in exchange for promoting their interests in official travel to Nigeria, Ghana, and other African nations and in official meetings and correspondence with both U.S. and foreign government officials.

Jefferson's case is marked by some particularly compelling evidence: a videotape of him accepting $100,000 from a cooperating witness and the recovery of $90,000 of that money from his refrigerator freezer in a raid of his house.

Now Jefferson has moved to dismiss the charges of bribery and related offenses by exploiting the majority's holding in Valdes. Seizing upon the fact that both bribery and gratuities charges must be predicated on an 'official act,' Jefferson claims that his alleged use of government resources to broker deals for private businesses was not 'official' in nature.

Jefferson reasons that his activities do not relate to a matter that was or could be pending before him 'in his capacity as a Member of the United States House of Representatives,' such as voting for legislation, authorizing appropriations, or exercising responsibilities under Article I, Section 8 of the Constitution. Invoking Valdes, Jefferson concludes that an 'official act' is not involved merely because a defendant's activities involved the use of official government resources.

CORRUPTION'S SHIELD

This argument demonstrates that Valdes --and its narrow interpretation of the term 'official act'--may be used by officials as a shield not only in gratuities cases but also in bribery cases.

To be sure, one can argue that Jefferson's defense is not particularly good. For one, as the government pointed out in its papers, Jefferson claimed in his travel disclosure reports to the House clerk that his trips to Africa were 'in connection to [his] duties as a Member of the U.S. House of Representatives.' Jefferson's present assertion that his Africa trips were not 'official' strains credulity.

Further, the applicability of Valdes to bribery cases is also less than clear. The Valdes court discounted arguments that its holding would jeopardize federal bribery prosecutions, emphasizing that the bribery statute contains two other acts in addition to 'official acts' that can support a charge of bribery. These include acts 'in violation of the lawful duty of such official or person' and acts to commit or aid in committing 'any fraud.' The government need show only that Jefferson's actions fall into one of these three categories.

Even if Jefferson's defense ultimately fails, however, Valdes opens the door to this type of argument. What is more, under the reasoning of Valdes, some of Jefferson's activities arguably would not constitute 'official acts.' For instance, a court might well decide that merely meeting with foreign dignitaries or introducing business representatives to government officials are not formal, 'official acts' within the meaning of the gratuities and bribery statutes.

The Jefferson case thus underscores the need to amend the federal gratuities and bribery statutes to correct the overly narrow construction given to the term 'official act' by Valdes. To ensure that federal officials fulfill their responsibilities to the public, these laws should cover any actions by public officials who abuse the privileges and powers of their offices.

HELP FROM CONGRESS

Fortunately, some members of Congress have recognized the problem created by Valdes, and efforts to make these changes are under way.

Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) have introduced S. 1946, the Public Corruption Prosecution Improvements Act. The Campaign Legal Center, together with Common Cause, Democracy 21, the League of Women Voters, Public Citizen, and U.S. PIRG, is urging senators to pass the legislation, which the Senate Judiciary Committee approved on Nov. 1.

Crucially, the Leahy-Cornyn bill expands the definition of 'official act' to include 'any action within the range of official duty.' The bill also would amend the gratuities statute to reach money or gifts given to a public official not only for 'official acts,' but also for or because of the official's 'official position.'

The bill would thus clarify the meaning and scope of the gratuities and bribery statutes, and it would help ensure that the government has the statutory authority to effectively prosecute misconduct by public officials.

In addition to fixing the Valdes problem, the bill increases the maximum penalty for serious public corruption offenses; extends the statute of limitations for bribery, deprivation of honest services involving a public official, and extortion by a public official; and provides additional funds to the Department of Justice for the investigation and prosecution of public corruption.

The great majority of public servants do their jobs honestly and ethically. But Sen. Leahy noted the 'rampant public corruption we have seen in recent years,' and he rightly concluded that the bill is necessary 'to give law enforcement the resources it needs to effectively investigate and prosecute public corruption crimes.'

By amending the gratuities and bribery statutes, the Leahy-Cornyn bill would return to prosecutors a valuable tool in their fight against governmental corruption. It closes the loophole in the law that Valdes opened and that Rep. Jefferson is exploiting. The Senate should pass this bill, and the House should follow the Senate's example.