Continued Incredulity Over Snyder v. United States

I blogged about this case after oral argument, and SCOTUS produced the predicted 6-3 party-line endorsement of public corruption.  The opinion by Justice Kavanaugh amply illustrates just how inept this Court is at recognizing corruption.

James E. Snyder was elected Mayor of Portage, Indiana in 2011.  In 2014, Mr. Snyder accepted a $13,000 check from a company, Great Lakes Peterbilt (Peterbilt).  Federal prosecutors concluded that this payment was an illegal gratuity, paid to reward Mr. Snyder for steering a $1.1 million garbage truck purchasing contract to the company.  Mr. Snyder contended that the payment was for consulting services.  A federal jury believed the government's version of events, and a District Court sentenced Mr. Snyder to 21 months in prison.  The Supreme Court took the case in order to determine whether the relevant federal statute, 18 U. S. C. §666(a)(1)(B) covers gratuities, paid as a reward, as well as bribes paid in advance of some benefit that the recipient, a government official, provides to the payor.

Justice Kavanaugh (right), writing for the majority, considers "text, statutory history, statutory structure, statutory punishments, federalism, and fair notice," and concludes that the statute applies only to bribes, not to gratuities.  Indiana law may very well prohibit Mr. Snyder's conduct, but he was never prosecuted under Indiana law.  Nothing to see here, folks.

Justice Kavanaugh does provide cogent reasons for a narrow reading of the statute.  Two of the six Circuit Courts to confront the issue also concluded that § 666 is only about bribery and not about acceptances of gratuities.  He could have just gone with text, statutory history, and statutory structure, and the opinion would have been okay.  Justice Gorsuch briefly concurred, arguing that the scope of the statute is unclear, and in such cases, the rule of lenity counsels forbearance of prosecution.  

Instead Justice Kavanaugh engages in a meandering discussion of what he calls fair notice.  He is concerned about the possible overbreadth of the statute and its use to punish innocuous gifts, such as $100 gift cards at Dunkin' or students taking their college professors out for Chipotle or buying them tickets to a sporting event.  

Here my incredulity kicks in.  First, of course, the problem is not in taking gifts but in accepting them as a gratuity for some wrongful purpose.  I'm not sure politicians should be accepting giftcards from businesses if there is any connection between the gift card and public affairs in over which the politician has influence or decision-making power.  But if they engaged in such conduct, it would be the government's burden to convince a jury that a politician engaged in an act of official corruption in exchange for a $100 gift card at Dunkin'.  All Mr. Snyder had to do was show that he did some actual work in exchange for his $13,000 gratuity.  As the dissent points out, he made no such showing.  

It would not be a wrongful act if all of the students in a particular course or section bought their professor a meal or some other gift, so long as there were no connection between the gift and the grade.  

But I don't accept gifts from individual students.  First, I am comfortably situated, and my students are students. I would not want to contribute to a culture in which students think it appropriate to transfer wealth or resources upwards. I wouldn't want students to think that there were some expectation that they buy gifts for their professors.  I make an exception when student organizations give me small gifts for participating as a panelist or moderator for their events.  I make this exception as a cultural accommodation because they give the same gifts to all faculty members or outside speakers who participate.  I wish they wouldn't give me the gifts, but it would be awkward and churlish were I to reject the gifts that the students selected for me and which my colleagues accept.  However, I usually re-gift these things because otherwise I will forget about them, and they will collect dust in my office until I re-discover them years later.

Perhaps I would feel differently about these things if, like Justice Kavanaugh, I had attended elite private schools all my life in which many of my peers were far better off financially than their teachers.  But I think that says more about the lack of socio-economic diversity on the Court than it does about the ethics of the situation.

This isn't hard. I am well-compensated, and my power relations with my students are asymmetrical.  Students can't afford to buy me gifts, and I can't afford the appearance of impropriety that would arise should I accept their gifts.  

Not for nothing, on the subject of fair notice, it seems worth pointing out that Justice Kavanaugh joined the majority opinion in Campos-Chaves v. Goya, an immigration case decided less than two weeks before Snyder.  The issue in that case was whether immigrants can be ordered removed from the United States in absentia when they were not provided with the statutorily required "notice to appear."  That case actually was actually about notice and the stakes were higher than in Snyder.  After all, is it even plausible to think that Snyder, whose conduct could have been punished under state law, took a gratuity because he thought the federal statute only covered quid pro quo graft?  But in Campos-Chayes, Justice Kavanaugh agreed with the Majority that a later "notice of hearing" sufficed, even though the latter was to be provided only as a supplement to the required "notice to appear" in case of change or postponement in the time or place of removal proceedings. So, forgive me for thinking that Justice Kavaugh's commitment to the principle of notice is selective.

In any case, Justice Jackson, writing for the three dissenting Justices, has the better textualist reading of the statute, which punishes corruption, whether the improper payments involve quid pro quo influencing or post hoc rewards.  Her reading of the statutory history and the relationship of the statutory language at issue to other federal statutes covers material in depth where the Majority opinion barely scratches the surface.

Justice Kavanaugh expresses concerns about federalism, but Congress addressed those concerns when it passed the statute.  Yes, states are expected to police their own corrupt politicians.  However, when state entities accept federal funds, Congress  recognized a need (evident from this very case) for a federal supplement to state anti-corruption measures.  

Justice Kavanaugh worries about where to draw the line between corrupt and innocent gratuities.  That, Justice Jackson responds, is a question for another day, because Mr. Snyder is not arguing that what he did was innocent. He argues that the federal statute does not reach his conduct, even if it was corrupt.  Justice Jackson then proceeds to illustrate the statutory guardrails already in place to address the danger about which Justice Kavanaugh worries.  Nobody is going to jail for accepting a gift card, unless they do so "corruptly." Prosecutors, courts, and juries do pretty well distinguishing corrupt from innocent gifts. 

Finally, Justice Kavanaugh cites to evidence that bribery is a much more serious crime than taking gratuities corruptly.  He may be right that courts and statutory schemes make it so, but Justice Jackson points out that the two forms of corruption can be quite similar.  In this case, Mr. Snyder apparently shepherded a contract to Peterbilt and then showed up at their offices demanding a $15,000 payment because he needed money.  He got $13,000.  He characterized that payment as a consulting fee, but he also called it other things.  Peterbilt said that he never provided any services to them.  A jury likely concluded that Mr. Snyder was lying.  How is what he did any better than demanding the payment up front?  Should the law care whether I demand that you pay me $13,000 in order to steer a contract your way or demand that you pay me $13,000 once I have successfully steered a contract your way?

So, bottom line;  As a matter of federal law, it is not a crime for a state politician to accept after-the-fact gratuities in exchange for political favors.  In related news, as a matter of federal law, states and localities can make it is a crime to sleep in public.