275 - "Give Me the Gold Bars Later:" The Corrupt Facilitate Even More Sleaze

The Court Fails the Common Sense Test

Just as orange-painted Trump lies outrageously, prevaricates, and refuses to answer questions, so our once-well-respected U. S. Supreme Court prefers to pronounce political more than well-reasoned juridical, precedent-secured, decisions. Democracy at home and (by example) abroad is perilously endangered by a court whose majority finds endless ways of justifying its highly partial and reckless decision-making.

A slew of decisions by the Court last week will likely undercut the continued prosecution of Trump, weaken or upset the convictions of many rioting Trumpists and Proud Boys who occupied the Capitol on Jan. 6, 2021, and make regulating the securities industry and improving our response to climate change impossible. And bump stocks do not now convert rifles into machine guns. Republicans have long wanted to annihilate the Rooseveltian administrative state.

That is what the angry members of the Supreme Court are about. Using "originalism" and historical interpretations dismissed by real historians, the revanchist members of the Court refuse simply to decide cases as per their responsibility under Article 3 of the Constitution. Instead, they reach for distorted ways by which American society be remade or redirected.

The Court has made so many blatantly political decisions in recent years that its disapproval ratings have reached 58 percent, the highest ever recorded.

To my mind, among the enormous damage that the Court's majority is doing to our government, present and future, now it has decided to recategorize and recalibrate the very being of political theft. The Court decided in Snyder v U. S. that a bribe given after an action occurs is not a bribe, but an allowable "gratuity."

Its ruling defies common sense and makes it much easier, in future, for politicians, officials, even Supreme Court justices, to receive gratuities after the fact despite using their influence to accomplish transactions helpful to soliciting clients.

If only Senator Robert Menendez, on trial now for trading public policy benefits for Egypt in exchange for various emoluments, had told the go-betweens from Egypt to deliver a trove of gold bullion only after the influence had been peddled, not before! Then Sen. Menendez could have received mere gratuities (in the form of gold) and not be on trial for accepting bribes.

Snyder v U.S. concerned the mayor of Portage, Indiana, near Lake Michigan. The city awarded contracts for garbage haulage to a company owned by two local business friends of Mayor Snyder. Federal prosecutors and the FBI alleged that the garbage truck bidding process had been manipulated to ensure that the mayor's friends prevailed. A jury convicted Mayor Snyder of accepting $13,000 in illegal payments for arranging the contract. A judge sentenced him to a year in jail. A federal appeals court upheld the conviction.

Snyder appealed, saying the federal statute under which he was sentenced criminalized only bribes, not gratuities. And he claimed to have received the $13,000 from the garbage haulers as a thank you gratuity -- for "consulting." This is the false distinction that the Supreme Court, by a 6-3 vote, bought. Do the conservative six have no common sense?

Obviously, the garbage haulers were grateful. Obviously, they thanked the mayor. He used his influence, says the FBI, to award the contract appropriately. Justice Ketanji Brown Jackson, in dissenting along with Justices Elena Kagan and Sonia Sotomayor, said that "Officials who use their public positions for private gain threaten the integrity of our most important institutions." She also said that Snyder's appeal offered an "absurd and atextual reading" of the statute under which he was convicted. She did not, but could have said, that it was a wacky reading -- a Mad Hatter interpretation, she did say, that "only today's court could love." And the conservative six did.

Perhaps they bought that newly enunciated and invented distinction between before and after bribery because so many of the justices themselves have been caught taking travel and luxury RV payments from wealthy donors, receiving handsome reimbursements for speaking engagements, and being associated with spouses who profit from being close to the Court.

Justice Brett B. Kavanaugh, writing for the majority, said that to support the prosecution in the Snyder case would "infringe on bedrock federalism principles." That is, using the usual manner of hypotheticals that the conservative six often employ, Kavanaugh worried that some gratuities are "problematic," some "commonplace." Thus, he concluded, it might be hard for a local official to do know what actions could lead to trial for corruption. He and Justice Neil M. Gorsuch offered that gratuities are not the same as bribes "before the official act." That is corrupt. But gratuities are "not the same." Except when they have the purpose, and the same purpose, as in this case.

I spend a lot of professional time writing about corruption all over the world. The Snyder decision is going to muddy the formerly clear waters. In the U.S., certainly, and perhaps elsewhere based on Snyder, many politicians, officials, and others seeking to benefit from their positions will simply ask to have the gold bars delivered afterwards, not before or during. This will be especially true in these United States at the local level, where so much influence peddling occurs.

Among the many comments from my experienced professional colleagues active in writing about all aspects of corruption, one said "Depending upon how far they want to push that pre-post phony distinction, the few restrictions on revolving-door jobs, for example, could go right out the window." Another reminded us that the 1977 U.S. Foreign Corrupt Practices Act makes doing what Snyder did illegal in the rest of the world. Why not in Indiana, also? He said: "This ruling would appear to allow a U.S. business to engage in conduct with a U.S. state or local official that said business would be prohibited from engaging in with a foreign official under the Foreign Corrupt Practices Act. That is, the FCPA criminalizes providing a foreign official something of value in exchange for favorable treatment -- no matter when the value is provided. FCPA decisions by courts have also specifically prohibited the conduct of this local state official in this case, which was to disguise the bribe/gratuity as payment for 'consulting services'."

Corrupt officials everywhere steal from those they purportedly serve. They do so to better themselves and use their elected or appointed positions of trust to achieve personal gain. That is corruption. It is an action that distorts governmental priorities and is costly -- to the tune, possibly, of a $1 trillion yearly across the globe. For our Supreme Court to rule that a gratuity is not necessarily a bribe is foolish, partial to themselves, and immensely dangerous.

a recent decision so fundamentally upsets the way in which theft by politicians is judged that - "Let Me Get Gold Bars Later:" The Corrupt Facilitating Even More Sleaze

            Just as orange-painted Trump lies outrageously, prevaricates, and refuses to answer questions, so our once-well-respected U. S. Supreme Court prefers to pronounce political more than well-reasoned juridical, precedent-secured, decisions. Democracy at home and (by example) abroad is perilously endangered by a court whose majority finds endless ways of justifying its highly partial and reckless decision-making.

            A slew of decisions by the Court last week will likely undercut the continued prosecution of Trump, weaken or upset the convictions of many rioting Trumpists and Proud Boys who occupied the Capitol on Jan. 6, 2021, and make regulating the securities industry and improving our response to climate change impossible. And bump stocks do not now convert rifles into machine guns. Republicans have long wanted to annihilate the Rooseveltian administrative state.

            That is what the angry members of the Supreme Court are about. Using "originalism" and historical interpretations dismissed by real historians, the revanchist members of the Court refuse simply to decide cases as per their responsibility under Article 3 of the Constitution. Instead, they reach for distorted ways by which American society be remade or redirected.

            The Court has made so many blatantly political decisions in recent years that its disapproval ratings have reached 58 percent, the highest ever recorded.

            To my mind, among the enormous damage that the Court's majority is doing to our government, present and future, now it has decided to recategorize and recalibrate the very being of political theft. The Court decided in Snyder v U. S. that a bribe given after an action occurs is not a bribe, but an allowable "gratuity." 

            Its ruling defies common sense and makes it much easier, in future, for politicians, officials, even Supreme Court justices, to receive gratuities after the fact despite using their influence to accomplish transactions helpful to soliciting clients.

            If only Senator Robert Menendez, on trial now for trading public policy benefits for Egypt in exchange for various emoluments, had told the go-betweens from Egypt to deliver a trove of gold bullion only after the influence had been peddled, not before! Then Sen. Menendez could have received mere gratuities (in the form of gold) and not be on trial for accepting bribes.

            Snyder v U.S. concerned the mayor of Portage, Indiana, near Lake Michigan. The city awarded contracts for garbage haulage to a company owned by two local business friends of Mayor Snyder. Federal prosecutors and the FBI alleged that the garbage truck bidding process had been manipulated to ensure that the mayor's friends prevailed. A jury convicted Mayor Snyder of accepting $13,000 in illegal payments for arranging the contract. A judge sentenced him to a year in jail. A federal appeals court upheld the conviction.

            Snyder appealed, saying the federal statute under which he was sentenced criminalized only bribes, not gratuities. And he claimed to have received the $13,000 from the garbage haulers as a thank you gratuity -- for "consulting." This is the false distinction that the Supreme Court, by a 6-3 vote, bought. Do the conservative six have no common sense? 

            Obviously, the garbage haulers were grateful. Obviously, they thanked the mayor. He used his influence, says the FBI, to award the contract appropriately.  Justice Ketanji Brown Jackson, in dissenting along with Justices Elena Kagan and Sonia Sotomayor, said that "Officials who use their public positions for private gain threaten the integrity of our most important institutions."  She also said that Snyder's appeal offered an "absurd and atextual reading" of the statute under which he was convicted.  She did not, but could have said, that it was a wacky reading -- a Mad Hatter interpretation, she did say, that "only today's court could love." And the conservative six did.

            Perhaps they bought that newly enunciated and invented distinction between before and after bribery because so many of the justices themselves have been caught taking travel and luxury RV payments from wealthy donors, receiving handsome reimbursements for speaking engagements, and being associated with spouses who profit from being close to the Court.

            Justice Brett B. Kavanaugh, writing for the majority, said that to support the prosecution in the Snyder case would "infringe on bedrock federalism principles." That is, using the usual manner of hypotheticals that the conservative six often employ, Kavanaugh worried that some gratuities are "problematic," some "commonplace."  Thus, he concluded, it might be hard for a local official to do know what actions could lead to trial for corruption. He and Justice Neil M. Gorsuch offered that gratuities are not the same as bribes "before the official act."  That is corrupt. But gratuities are "not the same."   Except when they have the purpose, and the same purpose, as in this case.

            I spend a lot of professional time writing about corruption all over the world. The Snyder decision is going to muddy the formerly clear waters. In the U.S., certainly, and perhaps elsewhere based on Snyder, many politicians, officials, and others seeking to benefit from their positions will simply ask to have the gold bars delivered afterwards, not before or during. This will be especially true in these United States at the local level, where so much influence peddling occurs. 

            Among the many comments from my experienced professional colleagues active in writing about all aspects of corruption, one said "Depending upon how far they want to push that pre-post phony distinction, the few restrictions on revolving-door jobs, for example, could go right out the window." Another reminded us that the 1977 U.S. Foreign Corrupt Practices Act makes doing what Snyder did illegal in the rest of the world. Why not in Indiana, also?  He said: "This ruling would appear to allow a U.S. business to engage in conduct with a U.S. state or local official that said business would be prohibited from engaging in with a foreign official under the Foreign Corrupt Practices Act. That is, the FCPA criminalizes providing a foreign official something of value in exchange for favorable treatment -- no matter when the value is provided.  FCPA decisions by courts have also specifically prohibited the conduct of this local state official in this case, which was to disguise the bribe/gratuity as payment for 'consulting services'."

         Corrupt officials everywhere steal from those they purportedly serve. They do so to better themselves and use their elected or appointed positions of trust to achieve personal gain. That is corruption. It is an action that distorts governmental priorities and is costly -- to the tune, possibly, of a $1 trillion yearly across the globe. For our Supreme Court to rule that a gratuity is not necessarily a bribe is foolish, partial to themselves, and immensely dangerous.

In honor of our independence, I’ll skip Thursday’s column and return to you all on Monday. Enjoy sun and surf, your gardens, and a brief respite from political troubles.