lHi! This is Larry, this blog’s occasional legal pundit, with a few ideas I’d like to share. But first, let me say that I’m retired, not looking for new clients, and not in business. I have opinions, but no ulterior motives.

Recent headlines say that the FBI has discovered 650 thousand Clinton-related emails, and the FBI is busily going through them. In case you haven’t been following this [and who would want to?] that’s more than 11 times the number previously disclosed by Clinton’s lawyers. At that time they said she furnished all the work-related material in her possession. That’s not necessarily inconsistent with current events, by the way; the new emails came from a computer owned by Anthony Weiner, and his wife, Huma Abedin; not from Clinton’s files. Where they originated is another matter entirely; but they resided with the Weiner-Abedin household at the time they were found. At least, that’s what the news reports say.

So I asked myself, if I were a gumshoe [which I have never been] and had this much new material, what would I pay attention to when searching for criminality? Well, lots of things; but while the prattling media seem fixated on possible violations of the Espionage Act,[1] I would start with the more bread-and-butter crimes you find in public corruption, i.e., with bribery and its ilk. The federal law is adamant that public employees should not take bribes.[2] It says, for example,

(b) Whoever— … directly or indirectly, corruptly gives, offers or promises anything of value to any public official … or offers or promises any public official … to give anything of value to any other person or entity, with intent— (A) to influence any official act; or (B) to influence such public official … to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) to induce such public official … to do or omit to do any act in violation of the lawful duty of such official ……

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.[3]

The restrictions that apply to people who offer bribes also apply to public officials who solicit them.[4]

OK, now let’s suppose you and I are GS 5, or 7 (or higher) clerks working for the FBI; we have 650 thousand emails to review; and we’re told to look for bribery. What should we focus on? Well, the statute tells us that, more or less. We’re to look for (i) a public official, (ii) who (is offered or solicits) (iii) “anything of value” to (iv) “influence any official act” or collude in a fraud or otherwise violate the official’s “lawful duty.”

So let’s march down the list of requirements. Bear in mind, we have to find something in each category to identify a crime, or at least that’s my view. A person is not automatically guilty of something if he or she is a public official. They must engage in prohibited conduct, as well..

Who’s a Public Official?

That’s easy in most cases. In general, people are “public officials” if they get a Government paycheck.[5] There are other possibilities as well, but as always, you should ask for guidance before making any judgments in an unclear case. Remember, you’re only a lowly reviewer of the documents; let others higher than you make the tough decisions.

What’s an Offer or Solicitation?

We all know what those are, right? You go to a car dealer to buy a car; the dealer shows you some, and makes an offer; you reply, and perhaps make a counter offer; and eventually you strike a deal, or go to another dealer. The process may be less obvious when you’re reviewing emails about things that, really, shouldn’t have been discussed. But eventually there has to be some sort of offer or solicitation, and perhaps an acceptance if there’s a deal. A final deal is not necessary, of course; offering a bribe, or soliciting one, is enough to establish liability.

What’s a Thing of Value?

Now that’s a very good question. Most of us recognize a “thing of value” when we see it. Cars, fine wines, sports tickets, a night with a sex worker, etc., all of them are valuable to someone. But what about a charitable contribution? Suppose someone offers to make a big donation to a charity that employs relatives of an official? Is that a “thing of value” to the official?

Let’s look at some history before I answer that. In 1989, the President’s Commission on Federal Ethics Law Reform recommended that the Bush Administration replace individual agency standards of conduct with a single regulation applicable to all. The President agreed, and signed an Executive Order directing the federal Office of Government Ethics [OGE]to write “a single, comprehensive, and clear set of executive branch standards of ethical conduct.”[6] OGE published Standards of Ethical Conduct in 1992 and they became effective on February 3, 1993.

The Bribery Statute prohibits most “direct or indirect” gifts to public officials. OGE went perhaps further than that. It said:

A gift which is solicited or accepted indirectly includes a gift: (1) Given with the employee’s knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative because of that person’s relationship to the employee, or (2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee …[7]

It’s my belief that today this interpretation is part of the Code of Ethics that all federal employees agree to follow when they take up their employment. Violation of it might be grounds for disciplinary action against a person still employed by the Government. But it – the language cited – may not be a binding interpretation of 18 U.S.C. §201, a federal criminal statute. So far as I know, OGE has no authority to make such interpretations. Only the Department of Justice does that, and the courts, not the OGE, decide. If you run into this issue, seek legal advice.

What’s an ”Official Act?”

An official act is, basically, anything that an official might decide in his or her official capacity.[8] I imagine there could be a great deal of hair splitting about whether a decision to have, or not have a meeting with this or that person is an official act. If you run into one of those situations, check with others higher up in the food chain of your organization. I imagine context will be important. If someone is willing to pay to have a meeting, for example, that’s interesting. The question might be, “is simply bargaining to have a meeting prohibited by the law?”

Conclusion

There, that’s the best I can do on short notice. Hopefully I’ve clarified some points. Actually, I’ve been trying to spot issues, not offer dispositive interpretations. Only the courts can do that, and I’m not on one of those. And by the way, Mrs. Clinton, if you had legal advice in advance about the propriety of your actions, you might be able to claim qualified immunity from civil suits. Check with your lawyers.

[1] See 18 U.S.C. § 792 et seq. We’re not dealing with it, so for a quick reference take a look at the Wikipedia entry at https://en.wikipedia.org/wiki/Espionage_Act_of_1917 .

[2] See 18 U.S.C. Ch. 11, Bribery, Graft & Conflicts of Interest, especially §§201-209, & 216. You can get this from the Government Printing Office, for free, at https://www.gpo.gov/fdsys/search/pagedetails.action?st=citation%3A18+USC+1961&granuleId=USCODE-2010-title18-partI-chap11&packageId=USCODE-2010-title18&bread=true&collectionCode=USCODE&browsePath=Title+18%2FPart+I%2FCHAPTER+11&collapse=true&fromBrowse=true

[3] See 18 U.S.C. §201(b) (1). Please note: the quote is heavily edited. If you want to see the whole thing, check the original.

[4] See 18 U.S.C. §201(b) (2).

[5] See 18 U.S.C. §201(a)(1): “[T]he term ‘‘public official’’ means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror…”

[6] If you want more of the history go to the Office of Government Ethics website at https://www.oge.gov/ .

[7] This appears in the Code of Federal Regulations. See 5 C.F.R. Part 2635, §203(f).

[8] See 18 U.S.C. §201(a)(3): “[T]he term ‘‘official act’’ means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

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