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Federal Prosecution of State and Local Corruption: From Sea to Shining Sea

There’s actually a constitutional basis to argue that the federal government should pursue these cases. The Guarantee Clause of the U.S. Constitution, Article 4, Section 4, provides that the “United States shall guarantee to every state in this union a republican form of government.” If “republican form of government” is understood to mean a representative democracy with power derived from the consent of the governed, then federal prosecution of state corruption may fulfill this mandate by removing corrupt state officials who either rose to power illegitimately or are using their powers to the detriment of their citizens. The normal political and legal structures within a state may be fine for handling most crimes, but when it comes to political corruption those structures themselves may be impaired. When that’s the case, there may be a role for the federal government.

When Should the Feds Step In?

One reason federal intervention in a state corruption case might be appropriate and even welcome is the presence of a real or perceived conflict of interest among state officials. If corruption exists at a high level in the state government, those who would be charged with investigating and prosecuting it – the state attorney general, for example – may be political allies and close friends of the potential targets. If a city or state is run by a well-entrenched corrupt political “machine” (I’m lookin’ at you, Chicago) it may be unrealistic to expect the local authorities to tackle the corruption among their friends and colleagues. Indeed, the prosecuting authorities in the state may themselves be involved in the corruption.

Another factor in favor of federal prosecution can be the resources available to the federal government. A large-scale public corruption investigation demands a great deal of prosecutorial and investigative time and money. Many state prosecutor’s offices could quickly be overwhelmed by the demands of such a case, particularly considering all of the other state matters they are tasked with handling. Federal prosecutors, with the vast investigative and prosecutorial power of the federal government behind them, are simply better equipped to tackle such a large-scale investigation than their state counterparts.

Prosecutorial resources and expertise are also an issue. Many state and local prosecutors accustomed to dealing with street crimes may have never handled a major public corruption case. Such cases raise complex legal and factual issues concerning things like proof of corrupt intent, not found in more typical state criminal law fare. The U.S. Department of Justice recognized the special nature of political corruption investigations by establishing the Public Integrity Section in 1976, with a staff of attorneys who specialize in such cases and travel the country assisting other federal prosecutors who are handling them. DOJ can bring a degree of prosecutorial firepower and experience to such investigations that is beyond the reach of most states.

The Laws Used to Prosecute State and Local Corruption

Somewhat surprisingly, there are not a lot of federal laws aimed directly at state and local corruption. The principal federal statute covering bribery and gratuities, 18 U.S.C. § 201, applies only to federal public officials. But federal prosecutors have been creative when it comes to putting other federal statutes to work in these cases.

Honest services fraud – perhaps the most popular theory used to prosecute state and local corruption is honest services mail and wire fraud. The mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343) apply to use of the mail, phone lines, or wireless transmissions in furtherance of any “scheme or artifice to defraud.” The statutes are routinely applied to the more typical schemes to defraud victims of money or property, such as a Ponzi scheme. But prosecutors also use mail and wire fraud to prosecute state and local officials for corruption, on the theory that the corrupt acts defrauded the public of its intangible right to the fair and honest services of their public officials.

Honest services fraud has been used to prosecute many state and local officials over the past few decades. At times it has been applied to schemes that appeared more politically sleazy or unethical than criminally corrupt, which led to controversy about the potential breadth of the theory. But in 2010 in Skilling v. United States the Supreme Court limited the statute, ruling that it only applies to conduct that amounts to bribery or kickbacks. Even with this limitation, though, it remains an important weapon for federal prosecutors attacking state or local corruption. Honest services fraud was one of the primary statutes used in the McDonnell prosecution, as well as in the prosecutions of New York state legislators.

Hobbs Act Extortion – another common theory is extortion under color of official right under the Hobbs Act, 18 U.S.C. § 1951. As I have discussed elsewhere, extortion “under color of official right” has been interpreted by the Supreme Court essentially to be the equivalent of bribery. In the absence of a general federal bribery statute that applies to state and local officials, Hobbs Act extortion is a favorite of federal prosecutors looking at state and local corruption. Along with honest services fraud, Hobbs Act extortion formed the core of the indictment against the McDonnell’s in Virginia, and the same two statutes also were used in the recent indictment of former New York state Assembly Speaker Sheldon Silver.

Federal Program Bribery – a less commonly used but very powerful law is the federal program bribery statute, 18 U.S.C. § 666. It prohibits theft or bribery by an agent of any organization or state or local government in connection with programs or agencies receiving federal funds. There are certain (and quite modest) minimum dollar requirements involved, but once those are met this statute is a potent anti-bribery tool that can apply not only to state or local government officials but to private individuals as well.

RICO – the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1964, is a statutory behemoth primarily aimed at organized crime. Given the breadth of the statute, however, it is possible to apply it to entities such as a governor’s office, charging that state officials or others conducted the affairs of that office through a “pattern of racketeering activity.” Racketeering activity is defined to include a number of state law crimes, including bribery and extortion. Accordingly, a state law bribery scheme affecting a state or local government, while not violating the federal bribery statute, may be brought as a federal prosecution through the vehicle of RICO.

Debate over federal prosecution of state and local officials reflects fundamental tensions about the proper balance of state and federal power that have existed since the founding of the nation. There will always be some, such as Governor McDonnell’s defenders in Virginia, who will argue that the federal government should butt out and allow the states to handle their own affairs. But as discussed above, there are many reasons why federal intervention may be necessary and appropriate — and if recent developments are any indication, federal prosecutors are not hesitating to jump in.

Montrose and Lee County, Iowa unprecedented case of #public corruption, #nepotism and #kleptocracy  Using Chemical weapons against civilians for the purpose of eliminating them from their private property.

Montrose and Lee County, Iowa unprecedented case of corrupt local government officials. Taking private property for personal gain.