Tuesday, January 10, 2006
The Houston Chronicle (AP) here, discusses a connection between Former House Majority Leader Tom DeLay and lobbyist Jack Abramoff. Obviously, a key question will be whether any of the conduct between these two individuals, and others, is illegal?
There are several criminal statutes that prosecutors might consider in examining this fact situation. Most notably prosecutors will be looking at the bribery statute, its accompanying gratuity provision, the Hobbs Act, and fraud statutes like mail and wire fraud. Campaign contributions have provided several cases in this area, as the line between a legitimate contribution and an illegitimate one can sometimes be difficult to discern.
Obviously, determining whether in fact there would be any illegality involved here would take scrutiny of a lot more evidence than is available. But lets consider what the statutes require:
Bribery, under section 201, requires the government to show that 1) something of value was given, offered, or promised; 2) to a federal public official; 3)corruptly to influence an official act. The gratuity provision within the bribery statute requires less proof and likewise provides for a lesser penalty.
The Hobbs Act provides an even greater penalty. It can be proven when there is 1) interstate commerce, and; 2) robbery or extortion. Extortion, however, can be "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Campaign contributions have been the subject of a couple of recent Supreme Court decisions that interpret the Hobbs Act. The Court has held that a "quid pro quo" is required (McCormick) but that passive acceptance may be sufficient (Evans). The Court in Evans stated, an 'affirmative act of inducement by a public official, such as a demand,' is not required for extortion 'under color of official right.'" (Podgor & Israel, White Collar Crime in a Nutshell 3rd Ed 119 (Thomson/West 2004).
Mail and wire fraud may also be statutes that prosecutors might be examining. Both the mail and wire fraud statutes have a definition statute in 18 U.S.C. sec. 1346 that provides that a scheme or artifice to defraud includes "a scheme or artifice to deprive another of the intangible right of honest services."
Finally, with the possibility that more than one person may be joined in the conduct, prosecutors may also be examining the conspiracy statute. Section 371 of title 18 provides for conspiracies that involve specific acts such as mail and wire fraud, or a conspiracy to defraud the government.
As this investigation unfolds, these statutes as well as others, are likely to be guiding forces in deciding whether the alleged conduct should be considered criminal.