An opinion released last week by the federal judge who presided over the Alabama bingo corruption trial urges the U.S. Supreme Court to better define what a “bribe” is and offers jury instructions that might aid in that endeavour.
Former Alabama Gov. Don Siegelman. Photo by Mike Disharoon.
U.S. District Judge Myron Thompson released the opinion last Tuesday. Thompson based the opinion on the jury instructions he gave jurors in the two “bingo trials” regarding the definition of quid pro quo — Latin for “this for that” and an important matter in bribery trials, especially those involving public officials.
Bribes involving campaign contributions — or the promise of them — are treated differently than other bribes because donating to a politician is considered a First Amendment right. The right to donate to politicians must be protected, so courts have special rules for campaign contributions and bribery. This has resulted in what Thompson called “a murky field of federal law.”
According to Thompson, there are standards to “ensure that protected political activity is not criminalized or unduly chilled.”
“These standards, however, are not a model of clarity,” Thompson wrote.
Thompson believes that his jury instructions helped clarify for the jury the difference between legal and illegal campaign contributions.
In the instructions to the juries in the two bingo trial cases, Thompson wrote that politicians often solicit campaign contributions and that donors can donate to support the candidate or reward him for taking actions the donor supports “in the generalized hope that the official will continue to take similar official actions in the future.” Lobbyists, too, can donate to politicians, even when they are considering business related to the lobbyist’s clients. None of that is illegal in most circumstances, Thompson said.
“However, when there is a quid pro quo agreement, orally or in writing, that is, a mutual understanding, between the donor and the elected official that a campaign contribution is conditioned on the performance of a specific official action, it constitutes a bribe under federal law,” Thompson wrote in the jury instructions (underlining in the original). He goes on to emphasize that the action taken by the public official must be a specific action, and not just “a generalized expectation of some future favorable action”.
In a quid pro quo agreement, both the public official and the briber must understand the agreement. In an agreement, both parties are liable.
Thompson wrote in his opinion that, in their rulings, courts have failed to use some words pertaining to bribery cases in a responsible way.
“In the public-corruption context, courts have been particularly lax in the use of certain words — explicit, express, agreement, promise, and quid pro quo — that should have clear legal meanings,” Thompson wrote.
The case against former Alabama Gov. Don Siegelman helped to clarify the law a bit. Siegelman was convicted of selling a seat on a state health care board to former Healthsouth CEO Richard Scrushy in exchange for $500,000 in donations to an issue campaign fund. On appeal, Siegelman’s attorneys argued that the agreement between the two parties must be “express,” but the 11th Circuit Court of Appeals rejected that claim.
“As the Eleventh Circuit recognized, an ‘express’ requirement creates an unrealistic burden, especially if there are no electronic recordings of the relevant conversations or if sophisticated actors are offering bribes,” Thompson wrote. There were no recordings or testimony regarding what Scrushy and Siegelman said to one another when the deal was made.
Thompson’s opinion comes just before Siegelman’s resentencing in that case, which is scheduled for August 3. Siegelman has been out of jail on appeal.
“Imprecise diction has caused considerable confusion over the scope of federal corruption laws as applied to campaign contributions,” Thompson wrote. “Uncertainty in this area of law breeds corruption and chills legitimate political speech.”
