Rick Morain is the former publisher and owner of the Jefferson Herald, for which he writes a regular column.
Question: When is a bribe not a bribe, but a thank-you gift?
Answer: When it’s paid after the fact, not before.
So says the U.S. Supreme Court.
Here’s the setup: In 2012 James Snyder, who had big debts and was behind on his taxes, was elected mayor of Portage, Indiana. Portage needed new garbage trucks.
Snyder took over the public bidding process. The mayor talked often with a pair of brothers who owned a local truck dealership, which also had financial trouble. Snyder designed the bidding so that only the brothers’ trucks met the specifications, and also had the city buy an older truck from the brothers’ lot. The brothers were awarded the $1.1 million city contract.
Two weeks later, Snyder visited the brothers and shared with them his own financial difficulties. They agreed to write him a check for $13,000 for “consulting services.”
The FBI investigated. As a result, Snyder was indicted, convicted, and given a 21-month prison sentence.
Snyder, by now a former mayor, argued that acceptance of the check—the “gift”—was not a crime. He lost that argument before a federal district judge, and the Seventh Circuit U.S. Appeals Court in Chicago upheld the judge’s decision. Now it was the U.S. Supreme Court’s turn.
Sounds pretty much open and shut to most ordinary folks, I expect.
But most of the Supreme Court justices are not ordinary folks. By a 6 to 3 decision in June, the court ruled in Snyder v. United States that a federal anti-bribery law, enacted in 1984 and amended in 1986, exempts state and local officials who accept a gratuity for acts they have already taken.
(The 1986 amendment had extended the federal bribery law to cover state and local officials of agencies that receive at least $10,000 in federal funds.)
The six justices in the majority constitute the court’s conservative wing: Brett Kavanaugh (who wrote the decision), Clarence Thomas, Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Chief Justice John Roberts. The three dissenters are the court’s liberal wing: Ketanji Brown Jackson (who wrote the dissent), Sonia Sotomayor, and Elena Kagan.
Justice Kavanaugh’s opinion overturned the appeals court decision on several grounds. One of the most interesting was that state and local governments already regulate gifts to officials, so the federal law shouldn’t add to those rules by subjecting state and local officials to federal prison “for accepting even commonplace gratuities.” He used as gratuity examples “gift cards, lunches, plaques, books, and framed photos or the like—that may be given as a token of appreciation after the official act.”
That’s a head-scratcher. The federal anti-bribery law makes it a crime to “corruptly solicit or demand . . . or accept . . . anything of value of $5,000 or more . . . intending to be influenced or rewarded in connection with any business or transaction.” It’s hard to imagine a $5,000 lunch or plaque or framed photo as a gratuity. In any event, the $13,000 gift to Snyder clearly exceeded the $5,000 minimum of the federal law.
But the former mayor argued that because the $13,000 check was written after the contract was awarded, it was not a bribe, but rather a gift, tip, or gratuity. Therefore in accepting it he had not violated the federal law.
It’s easy to imagine sweetheart agreements between contractors and state or local officials that involve a (wink, wink) thank-you gift after the fact, rather than a payment up front.
Justice Jackson noted in her dissent that the plain text of the federal statute applies to gratuities paid to state and local officials after they have acted. The crime, she emphasized, lies in accepting something of value “from any person, intending to be influenced or rewarded. The term ‘rewarded’ easily covers the concept of gratuities paid to corrupt officials after the fact—no upfront agreement necessary.”
She said the government has invoked the law in cases that “involve exactly the type of palm greasing that the statute plainly covers. . . . After today, however, the ability of the Federal Government to prosecute such obviously wrongful conduct is left in doubt.”
Jackson’s dissent included this stinging comment: Mayor Snyder’s “absurd and atextual reading of the statute is one only today’s Court could love.”
This columnist concurs.
Top photo is by Red Fox Studio, available via Shutterstock.