Section 666 Does Not Cover Gratuities

In 6-3 decision, the Supreme Court in Snyder v. United States resolved a jurisdictional split holding that:

The question in this case is whether §666 also makes it a crime for state and local officials to accept gratuities—for example, gift cards, lunches, plaques, books, framed photos, or the like—that may be given as a token of appreciation after the official act. The answer is no. State and local governments often regulate the gifts that state and local officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities. Rather, §666 leaves it to state and local governments to regulate gratuities to state and local officials.

Here's some analysis of Justice Kavanaugh's majority opinion: 

1.  The Court provides a definition of the difference between bribes and gratuities - something that some have found to be  somewhat unclear.  The Court focused on the timing of the exchange and states, "As a general matter, bribes are payments made or agreed to before an official act in order to influence the official with respect to that future official act.  . . . Gratuities are typically payments made to an official after an official act as a token of appreciation."

2.  In resolving the jurisdictional split, the Court notes, "Six reasons, taken together, lead us to conclude that §666 is a bribery statute and not a gratuities statute—text, statutory history, statutory structure, statutory punishments, federalism, and fair notice." 

3. The Court recognizes the State power to control this conduct if it finds it objectionable. ("States have the 'prerogative to regulate the permissible scope of interactions between state officials and their constituents.'”)

4.  The majority uses the scare of prosecutors proceeding with a section 666 case for "gift cards, lunches, plaques, books, framed photos, or the like—that may be given as a token of appreciation after the official act." ("an unfair trap for 19 million state and local officials")

Justice Gorsuch authored a short concurring opinion that starts and ends with a strong recognition of the Rule of Lenity. ("But make no mistake: Whatever the label, lenity is what’s at work behind today’s decision, just as it is in so many others.")

The dissent, authored by Justice Jackson and joined by Justices Sotomayor and Kagan makes some important points:

1. "Officials who use their public positions for private gain threaten the integrity of our most important institutions."

2.  The dissent hits back on the statutory textual analysis of the majority - "Congress used 'expansive, unqualified language' in 18 U. S. C. §666 to criminalize graft involving state, local, and tribal entities, as well as other organizations receiving federal funds."

3. The dissent offers a more nuanced approach to the statute, giving recognition to Congress' use of the term "reward." ("The word 'rewarded' means to have been given a reward for some action taken. So gratuities are plainly covered. To be sure, if the Court had given that straightforward answer, we might eventually have confronted a followup question: Are all gratuities covered? Said differently: Even if gratuities generally are criminalized by §666, are there circumstances in which certain gratuities are not criminalized?") 

4. The dissent notes that common gift giving would not be implicated, but "rewards corruptly accepted by government officials in ways that are functionally indistinguishable from taking a bribe."

So bottom line - the justices in the majority see this as a dichotomous question.  The three women on the dissent go beyond the monochrome to offer an approach that would criminalize nefarious conduct, but not to a point of ridiculousness.  They offer a good roadmap for Congress to come back and redo this statute.  

(esp)