The need for a clear statement after 'bridgegate': combatting scotus's narrowing view of corruption with an 'abuse of functions' offense

• Author: Sloan Renfro
• Pages: 197-230

NOTE

The Need for a Clear Statement After “Bridgegate”: Combatting

SCOTUS’s Narrowing View of Corruption with an “Abuse of

Functions” Offense

Sloan Renfro*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

I. PUBLIC CRIMINAL OFFENSES: BENCHMARKING THE U.S. LEGAL REGIME

AGAINST THE UNITED NATIONS CONVENTION AGAINST CORRUPTION . . . . 199

A. Benchmarking Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

1. UNCAC Article 15: Domestic Bribery. . . . . . . . . . . . . . . 201

2. UNCAC Article 16: Foreign Bribery . . . . . . . . . . . . . . . . 203

B. Benchmarking Embezzlement. . . . . . . . . . . . . . . . . . . . . . . . . 204

C. Benchmarking Abuses of Power . . . . . . . . . . . . . . . . . . . . . . . 205

II. JUDICIAL INTERPRETATIONS: A NARROWING EXERCISE CREATING A

GLARING GAP IN CURRENT U.S. APPROACHES TO COMBATTING PUBLIC

CORRUPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

A. The Court’s Two Overarching Concerns in Broad Corruption

Constructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

B. Judicial Interpretations in Key Corruption Cases . . . . . . . . . . 211

1. McNally v. United States (1987) . . . . . . . . . . . . . . . . . . . 212

2. Cleveland v. United States (2000) . . . . . . . . . . . . . . . . . . 213

3. Skilling v. United States (2010) . . . . . . . . . . . . . . . . . . . . 214

4. McDonnell v. United States (2016) . . . . . . . . . . . . . . . . . 214

5. Kelly v. United States (2020) . . . . . . . . . . . . . . . . . . . . . . 215

C. The Glaring Gap in Current U.S. Approaches. . . . . . . . . . . . . 216

III. PROPOSED SOLUTION: A CLEAR STATEMENT FROM CONGRESS IN THE FORM

OF AN “ABUSE OF FUNCTIONS” FEDERAL CRIMINAL OFFENSE . . . . . . . . . 220

A. Statement of Purpose: Broadening the U.S. Criminal Legal

Definition of Corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

B. “Abuse of Functions” Offense . . . . . . . . . . . . . . . . . . . . . . . . 222

1. Proposed Elements of Offense. . . . . . . . . . . . . . . . . . . . . 224

2. Preemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

C. Application of “Abuse of Functions” to Recent Corruption

Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

* Thank you to Professor Sean Hagan for his invaluable input, guidance, and support throughout writing this

Note. © 2022, Sloan Renfro.

197

INTRODUCTION

Consider the following:

A wealthy businessman looking to develop an experimental health product

pays over $175,000 in gifts to his state’s highest-ranking official in exchange

for meetings and social gatherings with other high-ranking officials about

acquiring coveted research studies for his product.

High-ranking officials of a state probation agency conspire to cater to hiring

requests from members of the state legislature with the hope of obtaining

favorable legislation for their agency. They do so by circumventing state hir-

ing protocols and using an elaborate scheme to inflate candidate ranking

scores to secure positions in the agency for pre-selected candidates.

A senior state official’s right-hand aid coordinates with the local transporta-

tion agency to inflict retribution on a political foe by denying the foe’s constit-

uents access to a key bridge for several days under the guise of a government

program. It causes complete chaos, as people get stuck in traffic gridlock for

hours on their way to work and school.

What do these public scandals have in common? They all occurred in the United

States, and none of them resulted in criminal convictions for corruption.

1

Over the past forty years, the Supreme Court has consistently narrowed the fed-

eral judicial interpretation of criminal corruption, in direct conflict with the broad-

ened understanding of the term in the international legal community, the U.S.

Congress, and the general public.

2

The Court’s latest decision in this area, Kelly v.

United States, which involves an event commonly known as “Bridgegate,”

3

reaf-

firms its narrow view of what constitutes public corruption and lets evidently cor-

rupt public officials off the hook for abuses of their power and official functions.

4

Public corruption is traditionally defined as “the abuse of an entrusted power for

private gain.”

5

Over the past several years, anti-corruption scholars have

debated whether recent federal court decisions, as well as current U.S. federal

laws in combination with state laws, provide effective legal tools to combat

public corruption at federal, state, and local levels.

6

This Note contributes to

1. See (in order of appearance above) McDonnell v. United States, 136 S. Ct. 2355 (2016); United States v.

Tavares, 844 F.3d 46 (1st Cir. 2016); Kelly v. United States, 140 S. Ct. 1565 (2020) (involving the event known

as “Bridgegate”).

2. See detailed discussion of the Court’s anti-corruption jurisprudence infra Part II.B.

3. See discussion of this case infra Part II.B.

4. Kelly, 140 S. Ct. at 1568–69 (2020).

5. SUSAN ROSE-ACKERMAN & BONNIE PALIFKA, CORRUPTION AND GOVERNMENT: CAUSES, CONSEQUENCES,

AND REFORM 9 (2nd ed. 2016) (citing Transparency International’s definition of corruption).

6. See, e.g., George D. Brown, Defending Bridgegate, 77 WASH. & LEE L. REV. ONLINE 141 (2020); Nicole

M. Argentieri & Matt Cowan, Federal Public Corruption Prosecution After ‘Bridgegate’, N.Y.L.J. (June 16,

2020), https://www.law.com/newyorklawjournal/2020/06/16/federal-public-corruption-prosecution-after-

bridgegate/?slreturn=20201009181827.

198 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:197

this debate by arguing that—because of the Court’s narrow interpretation of

criminal corruption offenses—current U.S. laws, when benchmarked against

international standards, do not sufficiently guard against certain internationally

recognized forms of public corruption that Congress has intended to criminal-

ize. Specifically, this Note contends that the Court has made it nearly impossi-

ble to prosecute officials who abuse their power without quid pro quo bribery,

theft, or a fraudulent scheme to obtain money or property for personal advant-

age.

7

It further argues that a new abuse of functions federal criminal offense is

required to address the gap in U.S. anti-corruption laws created by the Court’s

jurisprudence, which currently fails to punish many of the more sophisticated

forms of political corruption witnessed today.

8

Part I of this Note defines public corruption and identifies internationally recog-

nized public criminal offenses under the United Nations Convention Against

Corruption (“UNCAC”). The Note then benchmarks the several U.S. criminal

offenses against the UNCAC criminal offenses, revealing that because Congress

has not recognized an “abuse of functions” offense, a legal gap could emerge,

allowing conduct the UNCAC seeks to criminalize to go unpunished in the United

States. Part II argues that in narrowly construing these federal corruption statutes,

the Court turned the risk of a legal gap into reality, hindering U.S. efforts to crimi-

nalize public corruption, particularly political corruption, at the state and local lev-

els. It then details this gap’s problematic impact on the broader political process.

Part III proposes that the United States remedy this gap in the form of an abuse of

functions federal criminal offense. It does so by considering the emerging standard

reflected in the principles of UNCAC Article 19, the United Kingdom’s recent

Law Commission (“Law Commission”) proposal to establish a new statutory

offense of corruption in public office, and certain U.S. state laws. Part IV

concludes.

I. PUBLIC CRIMINAL OFFENSES: BENCHMARKING THE U.S. LEGAL REGIME AGAINST

THE UNITED NATIONS CONVENTION AGAINST CORRUPTION

This Part identifies the internationally agreed-upon understandings of corruption

reflected in the UNCAC. It discusses the UNCAC’s broad understanding of public

corruption and benchmarks U.S. federal statutes against the UNCAC’s model cor-

ruption legislation. This benchmarking reveals that the United States’ complex

approach to criminalizing public corruption creates the possibility of a legal gap in

combatting behavior the UNCAC intends to address—specifically abuses of func-

tions for undue political advantage on the state and local levels.

9

7. See, e.g., Leah Litman, Prosecuting political corruption cases like Bridgegate is nearly impossible; WASH.

POST (May 8, 2020), https://perma.cc/HU79-EXD9.

8. See discussion infra Part II.

9. See discussion infra Part I.C.

2022] THE NEED FOR A CLEAR STATEMENT AFTER “BRIDGEGATE” 199