Legal Jeopardy

is a senior editor at Slate. The prosecutors hearing Jack Abramoff's confession have, perhaps, too many choices. Depending on what Abramoff tells them, government lawyers could use any of at least four federal statutes to pursue the former lobbyist's associates, including members of Congress and their staffers. The laws date from different eras and were adopted not only to stem corruption, but also to fight racketeering and mail fraud. And they owe their reach to broad judicial interpretation as well as to legislative drafting. In other words, the laws hardly form a coherent, interlocking whole. Or, as Wayne State University Law Professor Peter J. Henning has written, "[O]ne can best describe the federal law as a hodgepodge."That hodgepodge means that some legal observers have an unusual reaction to the current plight of lobbyists: sympathy. With multiple charges to choose from, some of which have vague standards of proof, prosecutors have great leeway in choosing whom they will charge, how they will charge them, and tremendous leverage to induce guilty pleas. All this discretion means prosecutors may snare people who stumble into giving gifts improperly in addition to those who deliberately buy votes. And it leaves Congress and K Street to conduct a vast amount of business without sharp lines to demarcate what lobbyists are paid and expected to do (give money to curry favor generally) and what's off-limits (giving money to win a specific result). In the wake of the Abramoff scandal, as other lobbyists confess that they've been breaking the law unwittingly or carelessly, clearer rules are a prerequisite for heading off future corruption meltdowns. Consider the various tentacles of federal anticorruption law. In 1853, Congress made it a crime to offer or give a thing of value to any federal official "with intent to influence his vote or decision" on any official action. The law was updated in 1962 to reach the person accepting the bribe as well as the one offering it. This statute remains the basic ban on bribery, requiring proof of a quid pro quo--I'll pay for a think tank to take you golfing in Scotland if you'll vote my way on the next appropriations bill--to show that the bribe was intended to "corruptly influence an official act." Because the standard of proof is relatively high--ideally, an official hangs himself with his own words, the sort of evidence that usually requires a phone tap or a wire- -the penalties for bribery are relatively high as well. But prosecutors who don't think they can prove bribery can turn to its little cousin: the gratuities provision of the same statute. The ban on gratuities broadens a prosecutor's reach by allowing her to go after a lobbyist or official without showing that he agreed to a quid pro quo. Instead, the prosecution has only to prove that the lobbyist gave a gift because of a politician's official act. (As the aphorism goes: "Bribery is for saying please. Gratuity is for saying thank you.") Once the government has established a link between a gift and a vote, for example, it can indict--and, if the circumstantial evidence seems compelling, it's likely to persuade a jury to convict. There's a caveat to all this, but not much of one. In the 1999 case United States v. Sun-Diamond Growers, involving $5,900 worth of gifts to then-Secretary of Agriculture Michael Espy, the Supreme Court rejected the government's attempt to turn the gratuities statute into a weapon against lobbying generally, ruling that the government can't convict merely by showing that gifts were given to influence an official because of his authority over the giver's business. Sun-Diamond is often praised for making gratuities violations harder to prove, and it did. But, because the government still doesn't have to show that the gift was given or received with corrupt intent, a cooperating witness like Abramoff--plus circumstantial evidence--can be all prosecutors need. The danger of gratuities law, U.S. District Judge James S. Moody Jr. wrote in a 2001 case, is that it can "ensnare many individuals who had made innocent gifts or loans or had legitimate business transactions with officials." Adds former federal prosecutor Seth Rodner, now a defense lawyer at the Florida firm Fowler White Boggs Banker, "How do you tell the difference between currying favor, which is politics as usual, and illegality? SunDiamond doesn't tell you. It's just case by case." If neither the bribery nor gratuities laws suffice, prosecutors can turn to the Hobbs Act, a successor to the Anti-Racketeering Act of 1934, which makes it a crime for politicians to use the power of their office to defraud the public by extorting a payoff. Defense lawyers have often tried to argue that Hobbs Act charges are too vague, but the Supreme Court has never overturned a Hobbs Act conviction for that reason, according to Ellen Podgor, a law professor at Georgia State University and the co-author (with Henning) of White Collar Crime Prof Blog. Or prosecutors can charge mail and wire fraud, which applies to a "scheme to defraud"--broadly defined--that employs a mail or wire service. "I can list on one hand the things that have been held not to be schemes to defraud," says Podgor. "I don't have enough fingers in a whole class of students to list all the things that have been held to be schemes to defraud." Defense lawyers say that the broad, ambiguous nature of anticorruption laws does lobbyists and politicians a disservice. "Since there's no bright-line rule, there's no way to navigate," says Rodner. "Aspirationally, we don't want graft. The system should err in that direction. But, as a legal matter, you can sympathize with these people, because federal law doesn't proscribe giving gifts simply because of a politician's official status. So, if someone gives a gift thinking it's legal, and someone else accepts it on that basis, and then federal law enforcement says it's not--well, that can be terribly unfair." Prosecutors were accused of overreaching in the case against Espy; after he pleaded guilty to one charge, the trial judge threw out eight counts against him, including the gratuities charges, and then a jury acquitted him of 30 more. In 1992, Joe McDade, then a Republican representative from Pennsylvania, was charged with racketeering and conspiracy as well as accepting gratuities-- taking gifts and trips in exchange for helping contractors in his district. Other members of Congress rallied to his defense, calling the prosecution a dangerous precedent. McDade was acquitted in 1996. How could Congress make corruption prosecutions more consistent and coherent? Lawmakers could obviously make corruption harder to prove by always requiring evidence of a quid pro quo. But that could well make corruption easier to get away with. A bold move in the opposite direction would be to ban the acceptance of any gifts by public officials. Current congressional rules sound strict--lobbyists are limited to giving members gifts worth less than $50 at a time, for a total of $100 a year--but lobbyists can make gifts of far greater value through charities, foundations, and other organizations. According to The New York Times, groups have spent $18 million to send 600 lawmakers on 6,000 trips in the last five years. Such junkets were Abramoff's mainstay; he took members of Congress to play golf in Scotland, Russia, and the Northern Mariana Islands. Stricter rules have some precedent. "Florida state officials now have incredibly stringent standards for the acceptance of gifts," Rodner says. "That sets a very clear standard." And, oddly enough, K Street might find tougher rules a relief rather than a burden. After all, it's often the member of Congress and his or her staff who makes the overture. "We would be happy to stop having to give money every time they call," one Washington lobbyist told Slate's John Dickerson earlier this month. But that may be too much for Congress to swallow. Last week, House Speaker Dennis Hastert suggested a ban on privately funded junkets, but a loophole would allow such trips if the sponsor were a campaign contributor. Legislation introduced last month by Senator John McCain and Representative Christopher Shays isn't perfect, either. It calls for greater disclosure of lobbyists' donations and of the fund-raising events they hold. But asking legislators to file more forms won't make anticorruption law clearer. It would remain imperfect and unwieldy--to the benefit of no one except prosecutors.

By emily bazelon