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Corruption Prevention in the American Public Prosecution System. Brian Pearce Resident Legal Adviser/US Embassy & TCLI Federal Prosecutor/US Dept. of Justice. Outline. Federal Statutes Aimed at Corruption Regulations for Executive Officials State Bar Rules for Lawyers
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Corruption Prevention in the American Public Prosecution System Brian Pearce Resident Legal Adviser/US Embassy & TCLI Federal Prosecutor/US Dept. of Justice
Outline • Federal Statutes Aimed at Corruption • Regulations for Executive Officials • State Bar Rules for Lawyers • Supplemental Regulations for Prosecutors • Internal Policy and Enforcement Agencies .
Oversight of Prosecutors Judges/ Opposing Counsel Federal Law Enforcement Supervisors Office of Professional Responsibility State Bar Federal Agency
Statutory Timeline • 1776: Bribery statutes carry over from British rule. Aim to ensure government “By the People, For the People” -- not “Buy the Official, For the Official.” • Purely reactive and prohibitive system (“thou shalt not take a bribe”) -- not proactive or aspirational (i.e., training toward a higher standard, avoiding even appearances of misconduct). • 1863: Civil War procurement scandals. Bribery laws are supplemented with statutes aimed at official profiteering. .
Statutory Timeline (cont.) • 1963: President Kennedy seeks aspirational laws, regulations to put new stamp on public service. • 1965: Executive Order 11222– Civil Service Commission (now Office of Personnel Management) issued six general principles of conduct, developed model regulation for each executive agencies to adapt to their needs. Confidential financial disclosure system begins for top officials. Proactive approach. .
Statutory Timeline (cont.) • 1973: Watergate scandal leads to several good governance measures. • 1978: Government Ethics Act. Office of Government Ethics was created to oversee agencies in creating ethics programs, rules of conduct. Financial disclosure expands; officials with significant discretion file confidentially (around 275,000); 20,000 top officials make public filings. .
Statutory Timeline (cont.) • 1988: Office of Government Ethics Reauthorization Act • 1989: Ethics Reform Act. Criminal statutes strengthened with civil and injunctive authority (e.g., disgorging profits, voiding transactions). Salaries raised at the same time that outside income and service were limited. • Executive Order 12674. 14 fundamental principles issued. OGE begins writing more extensive, detailed regulations with concrete examples. Published for public comment; 1,000 written comments received and addressed. .
The Statutory-Regulatory Pyramid State Bar Rules (lawyers in state) DOJ Supp. Regs. (DOJ employees) Executive Regulations (all executive employees) Federal Statutes (all persons in US, US citizens)
Corruption-Related Statutes • Bribery Statutes • Gratuity Statutes • Conflict of Interest Statutes .
18 U.S.C. § 201(c) Elements of Gratuity: To knowingly give, offer or promise; Anything of value; To a past, present of future public official; For or because of any official act, past, present of future 2-year felony 18 U.S.C. § 201(b)(1) Elements of Bribery: To corruptly give, offer or promise; Anything of value; To a present or future public official; With intent to influence any official act. 15-year felony Bribery and Gratuity Statutes
Examples of Gratuities • Oil company paid for vacation trips by tax official who was in charge of audit. U.S. v. Standefer, 452 F.Supp. 1178 (W.D.P.A. 1978). • Congressman received free trips from shipping company; introduced bill and wrote letters on congressional stationery seeking favorable treatment of the company. U.S. v. Biaggi, 853 F.2d 89 (2d Cir. 1988). • Informants at massage parlors gave police lieutenant $1,000 cash payments after he told them they were not properly licensed; sufficient evidence of linkage to continued operation. U.S. v. Ahn, 231 F.3d 26 (D.C.Cir. 2000).
Bribe or Gratuity? • Payment for past act: if there was a prior agreement, it is a bribe; if the payment is just a “thank you”, it’s a gratuity. • Payment to a previous official: probably a gratuity, unless there was a previous agreement. • No “quid pro quo”; official would have done the act anyway –gratuity.
Bribe or Gratuity? (cont.) • Payment is because of position—neither. General “goodwill” payment is not enough. Must link thing of value to official act. U.S. v. Sun Diamond, 119 S. Ct. 1402 (1999). • Offer of immunity or reduced sentence to cooperating witness –neither. U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999). • Offer of visa or other immigration benefits to cooperating witness– neither. U.S. v. Feng, 277 F.3d 1151 (9th Cir. 2002).
Conflict of Interest Statutes18 U.S.C. §§ 202 to 209, 216 • § 203: Representational Services. US officials, including prosecutors, cannot represent a party for compensation in a matter involving US or direct US interest. • § 204: Prosecuting Claim Against US. US officials may not prosecute claim against the US (or receive any benefit for assisting). Exception: professional non-profit organization, majority are US officials.
Conflict of Interest (cont.) § 207: Representation by Former Officials. Former US officials are restricted in their ability to handle matters against US: --Permanent ban: “participated personally and substantially as such officer.” -- 2-year ban: official knows or should know matter was under his/her responsibility in last year of service; -- 1-year ban: Presidential appointees, other high-ranking officials may not contact former office with intent of influencing any matter.
Conflict of Interest (cont.) • § 208: Personal Financial Interests. Officials may not participate personally and substantially in matter in which they, a partner, immediate relative or prospective employer have a financial interest. • § 209: Outside Income. Government officials may not receive compensation for official services from any outside source.
Example of § 205 Case • Air Force officer and EPA law clerk attended night classes at Georgetown Law School. They took part in lawyer-supervised workshop offering free legal services to poor people. Judge barred them from making appearance. Court of Appeals affirmed. Purpose is to protect both government and client. United States v. Bailey, 498 F.2d 677 (D.C. Cir. 1974).
Example of Section 208 “Financial Interest” Case • Air Force Reserve Officer worked on project to sell surplus cargo airplanes to Mexico. He met with US company bidding to upgrade runways there. During series of meetings, he applied for a job with the company. His actions constituted “negotiations” with prospective employer. US v. Schaltenbrand, 930 F.2d 1554 (11th Cir. 1991).
The Statutory-Regulatory Pyramid DOJ Supp. Regs. (DOJ lawyers) State Bar Code of Conduct (all lawyers in that state) Executive Regulations (all executive employees) Federal Statutes (all persons in US, US citizens)
Policy and Training in Codes of Conduct Government Ethics Office. • Drafted administrative standards of conduct. • Oversees Executive agencies in: --implementing Principles of Ethical Conduct; -- reviewing financial disclosure statements; writes opinion letters for high-level nominees. -- designing ethics training programs. --trains agency ethics counselors.
Enforcement of Codes of Conduct Office of Professional Responsibility • Established in 1975 to ensure DOJ employees perform duties, meet standards; • Investigates allegations of professional misconduct against DOJ attorneys & agents • Prosecutors must report every allegation of misconduct to a supervisor, who must report serious allegations to OPR.
OPR (cont.) • May ask for written response; if written record is not enough, two OPR attorneys conduct interviews; • Recommends range of discipline to Deputy AG; termination, resignation, suspension, and reprimands are typical; • Reports intentional/reckless cases to state bar. • Publishes report each year. • 2004: 987 complaints, 31% found to warrant further review; 88 full investigations opened; involved 144 allegations; 29% found valid.
Code of Conduct for Executive BranchExecutive Order 12674 • Gifts: “prohibited sources” are defined (e.g. regulated parties, parties seeking official action, subordinates); small gifts excepted. • Financial Conflicts. Official may not participate in matters in which she, spouse, minor children or business partners have an interest (exception for de minimis stock). • Non-public information. Official cannot use inside information gained through duties for own gain.
Executive Code of Conduct (cont.) • Personal Conflicts. Official may not participate without authorization in matters involving person with shared business or contractual interest, close relative, prospective employer of self or close relative, recent employer and others –Prosecutors must certify in each case that they have no personal relationship with any target of investigation, whether an individual or organization. • Outside Employment. Requires approval if related to subject matter of responsibility; outside practice of law requires approval, paid or unpaid.
DOJ Supplemental Regulations • 5 CFR Part 3801--impose often stricter standards than general Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR Part 2635. • Department Ethics Office: administers agency-specific program; requires annual ethics training; • Example of More Stringent Rule: Outside employment: May not handle any criminal matter, federal, state or local; no practice of law, except community service or representation of immediate family.
State Bar • Each State has its own State Bar association, which regulates licensing, continuing education, discipline and other matters. • Most States have an “integrated bar;” State Bar and Supreme Court work together in licensing and discipline. • Applicants must take “bar exam” on state law and multi-state ethics exam, complete detailed application and undergo background examination.
State Bar Discipline • California Model: State Bar operates a 2-tier State Bar Court with its own “professional responsibility judges.” State Bar can initiate case against accused lawyer in that court or Supreme Court. • Hawaii Model. Office of Disciplinary Counsel investigates complaints. Disciplinary Board (18 lawyers and non-lawyers chosen by Supreme Court) can impose discipline, but only the Supreme Court can disbar.
State Bar and Prosecutors • DOJ Requirement: All DOJ attorneys must be a licensed, active member of at least on State Bar (or District of Columbia Bar). • Most Federal Courts: require only that federal prosecutor be licensed in a State. • Minority Rule: federal prosecutors must be licensed member of that State’s Bar. • McDade Amendment: made state ethics rules more applicable to federal prosecutors. • Conflicts: State Code of Conduct may conflict with federal law/practice (e.g. Oregon undercover rule).
