Thursday, July 17, 2014
Brennan T. Hughes has posted A Statutory Element in Exile: The Crucial 'Corrupt Intent' Element in Federal Bribery Laws on SSRN. Here is the abstract:
This article focuses on the word "corruptly" found in many bribery statutes, including 18 U.S.C. § 201. I argue that the adverb constitutes an independent element of the crime, and its presence requires the jury to summon its moral intuition to determine whether the behavior that satisfies the other elements of the statutory crime was performed with evil intent. I pay special attention to the problem of campaign contributions as bribes.
It is unfortunate that many courts have effectively read the word "corruptly" out of the statute. The culprit is the Supreme Court’s opinion in Sun-Diamond.
Instead, I focus on the Supreme Court’s stated preference in Sun-Diamond and Skilling that federal anti-corruption laws should be narrowly construed. Bribery laws must be read narrowly because they threaten to capture a great deal of benign political activity, such as logrolling, vote-trading, and campaign contributions by special interest groups. The corrupt intent element functions to effectively narrow these potentially overinclusive anti-corruption laws by requiring the jury to find that the defendant acted with an evil mind. Although the precise contours of moral corruption will vary case-by-case, the corrupt intent element requires prosecutors to argue a theory of why a given quid pro quo was corrupt and therefore illegal.
To add more meat to the bones of corrupt intent, I make a brief detour through political theory to note how one’s political philosophy will affect one’s determination of whether a given quid pro quo (especially one involving a campaign contribution) is corrupt. I also explain that because bribery is effectively a lesser-included offense of Hobbs Act extortion and "honest services" mail or wire fraud, the corrupt intent element should carry over into these crimes.