Consider the following cases:
1. Lobbyists for state casino operators seek to persuade state legislators to support a bill to legalize gambling. Casino operators, working through lobbyists, treat legislators to entertainment, perks, and suggestions of large political contributions if they support the bill. Some of these lobbied lawmakers vote for the bill. Are they guilty of bribery?
2. A governor supports a referendum for a state lottery to raise money for school funding. An individual donates $500,000 to support the referendum. The governor thereafter appoints that individual to a state agency board. The governor receives nothing in return. Is he guilty of bribery?
3. A committee closely allied to a governor receives over $2 million from gambling interests. The committee uses the money for campaign-style television and radio ads supporting the governor's agenda. After the contributions are received the governor includes a new initiative in his legislative agenda to expand gambling in the state. Is he guilty of bribery?
These cases all involve the payment of money to influence the actions of government officials. To a prosecutor seeking to root out public corruption, these cases would appear to warrant criminal investigation. But the most critical element facing a prosecutor seeking to bring a charge of bribery against these officials and lobbyists would be to determine the following: Did lawmakers in 1 vote to legalize gambling because of the perks and promised financial contributions? Did the governor in 2 appoint the person to the state board because of his contribution to the lottery referendum? Did the governor in 3 support legislation benefiting the gambling industry because of the $2 million donation to a political committee supporting his agenda?
To prove bribery, the Supreme Court has held that "payments are made in return for an explicit promise or undertaking by the official to perform an official act." Thus, in each of the above cases a prosecutor must prove -- and a jury must find beyond a reasonable doubt -- that there was a corrupt exchange, namely, that a benefit was given in exchange for something received. This element in legal parlance is called the "quid pro quo." And it is a concept that is notoriously ambiguous, treacherous, and dangerous.
Cases 1 and 2 above both come from the same state -- Alabama -- and both were prosecuted before a jury. The jury in case 1 acquitted everybody -- state legislators, lobbyists, and industry moguls -- of bribery and fraud. In case 2, however, the jury convicted then-governor Don Siegelman of bribery. Case 3 has recently received considerable attention because it involves the governor of New York State, Andrew Cuomo, a former state attorney general who recently, and ironically, created a state commission to investigate ethical misconduct by government officials.
These cases could warrant criminal prosecution if the prosecutor has sufficient evidence of the quid pro quo. Such proof could come from the testimony of witnesses who personally participated in the corrupt arrangement either in giving or receiving payments, assuming a jury believes these witnesses. Proof could also come from taped conversations by the participants containing statements admitting key facts relevant to the agreement. Proof could also come from circumstantial evidence proving the agreement implicitly, such as proof of solicitations of benefits, the receipt and acceptance of benefits, and contemporaneous statements, writings, or official actions from which a corrupt exchange is the only logical explanation.
However, the problem in all of these cases boils down to the reality of our contemporary political culture in which massive amounts of money are lavished by corporations and wealthy donors through their lobbyists for the specific purpose of influencing lawmakers -- the messy, dirty political culture of back-scratching, secret deal-making, and unsavory favors. But no matter how distasteful, the line between illegal bribery and lawful persuasion is fuzzy, uncertain, and sometimes unknown. And given that uncertainty, there is the danger that innocent persons might be dragged into the criminal net through arbitrary fact-finding and decision-making by ambitious prosecutors, ignorant judges, and confused juries. Consider this: If the line between lawful and unlawful conduct is so nebulous, couldn't every president who appoints a campaign contributor as an ambassador, and every senator who puts forward a nominee for a federal judgeship after that person contributed to the Senator's campaign, be chargeable with bribery at the whim of a prosecutor, and convicted if a judge and jury go along?
One point is abundantly clear: a prosecutor's charging power is the most dangerous power of all, because it can be used by prosecutors to target for prosecution almost anyone a prosecutor wants to get. Indeed, a Congressional Committee investigating allegations of selective prosecution by the Bush administration's Justice Department heard abundant testimony supporting that claim by Governor Siegelman -- that he was the most powerful democrat in Alabama, that state republicans desperately wanted to take him down, and according to a former U.S. Attorney in Alabama, federal prosecutors knew the case was weak but went on a "fishing expedition" to "find anything they could find against [Siegelman]." The Siegelman case may be one of the most egregiously bad faith prosecutions by the Justice Department ever, maybe even worse than the bad faith prosecutions of the late Senator Ted Stevens and John Edwards. Indeed, 113 state Attorneys General of both political parties decried the Siegelman prosecution and supported, unsuccessfully, review by the U.S. Supreme Court.
Judges also make a difference in corruption trials, and the stark difference in verdicts in cases 1 and 2 may be attributable, in part, to the competence and ethics of the presiding judges. Alabama court observers have claimed that the judge in the Siegelman trial -- Mark Fuller -- harbored a strong bias against Siegelman. His bribery instruction to the jury has been assailed for diluting the quid pro quo requirement for bribery -- he did not advise the jury that it had to find an explicit promise or understanding -- before it could convict. Even with that deficient instruction, the jury deliberated 11 days and reported itself deadlocked several times before finding guilt on only a few of the numerous counts.
And, not surprisingly, the jury that acquitted the Alabama lawmakers and casino operators were correctly instructed by an experienced and respected federal district judge Myron Thompson who told the jury that it must find a "quid pro quo agreement," which he correctly defined as "a mutual understanding between the donor and the elected official that a campaign contribution is conditioned on the performance of a specific official action." The casino defendants contended that their conduct was inappropriate, maybe distasteful, but was not criminal because there was no actual quid pro quo. And the jury agreed.
What about Governor Cuomo's conduct? The millions of dollars by the gambling industry to a committee supporting Cuomo, after which Cuomo pressed for new state legislation legalizing gambling, could constitute a bribe depending on the evidence. There certainly is an appearance of impropriety. One of the commissioners on the governor's newly created Commission on Public Integrity was "stunned" by the disclosures. But once again, proving a quid pro quo is what makes a corruption investigation so complex. There may be innuendos and suggestions of corruption. But is there proof of an actual quid pro quo? And allowing prosecutors such wide opportunities for charging bribery, as in the Siegelman case, invites prosecutorial overreaching. The Siegelman case apparently was the first bribery prosecution predicated on issue-advocacy campaign contributions. The Justice Department wanted to get him. And they did. But was it fair?
Criminal statutes should not be so malleable that whatever the ethical boundaries might be, the line between lawful and unlawful conduct is clear. As Sir Thomas More famously told the judges before they ordered his execution, "The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely." To be free of prosecutorial selectiveness, judicial abuse, and jury caprice, the causeway's edges need to be clearly marked. But with so many holes, hollows, and loops, the crime of bribery may be a coin flip for some prosecutors, not a very inspiring situation.