PUBLISHED:February 06, 2012
Griffin testifies before House subcommittee on prohibition against self-dealing by federal officials
Professor Lisa Kern Griffin testified before the Subcommittee on Crime, Terrorism and Homeland Security of the U.S. House Committee on the Judiciary on July 26. An expert on federal criminal justice policy, evidence, and constitutional criminal procedure, Griffin addressed aspects of pending legislative responses to recent Supreme Court decisions affecting public corruption prosecutions — specifically those provisions of H.R. 2572, “The Clean Up Government Act of 2011.” The bill seeks to clarify the federal prohibition on self-dealing in the public sector, an area for which, she noted, the Supreme Court’s recent decision in Skilling v. United States cut off prosecutions for some categories of public officials who abuse their posts for personal gain. Where an official has significant personal financial interests at stake, those should always be disclosed, Griffin wrote in her testimony. An excerpt follows.
“Pocketing money is presumptively unrelated to the public interest. And when officials deviate from a baseline position of neutrality because of money, the public is entitled to know. No law could compel officials to act in the public interest at all times, but the proposed legislation at least ensures that the public is informed about the most corrosive conflicting motivations.
“One section of the proposed statute would overturn restrictive interpretations of bribes and gratuities. …
“That change does not, however, address the public official who conceals a personal financial interest in vendors who receive state contracts, or the conflict that arises when a public official takes actions that benefit a prospective employer. The advantage of focusing clearly on the problem of undisclosed self-dealing is that it would capture these situations and the secret retainer scenario — the stream of favors that later produces a stream of benefits — as well. Targeting undisclosed self-dealing also responds to the core harm of lost information in its various forms. This could be accomplished by a freestanding disclosure statute similar in structure to 18 U.S.C. § 208, which criminalizes undisclosed conflicts of interest by federal employees of the Executive Branch. The proposed addition of section 1346A, which responds to the Skilling decision and reinstates the undisclosed self-dealing theory of fraud, also fulfills that objective.
“Public corruption is complex, sometimes subtle, but always harmful. And a particularly harmful form of corruption now lies beyond the reach of federal law. Enlarging the terms of the current statutory scheme in response to recent Supreme Court decisions will also clarify its scope and thus decrease vagueness and overbreadth.”
“Pocketing money is presumptively unrelated to the public interest. And when officials deviate from a baseline position of neutrality because of money, the public is entitled to know. No law could compel officials to act in the public interest at all times, but the proposed legislation at least ensures that the public is informed about the most corrosive conflicting motivations.
“One section of the proposed statute would overturn restrictive interpretations of bribes and gratuities. …
“That change does not, however, address the public official who conceals a personal financial interest in vendors who receive state contracts, or the conflict that arises when a public official takes actions that benefit a prospective employer. The advantage of focusing clearly on the problem of undisclosed self-dealing is that it would capture these situations and the secret retainer scenario — the stream of favors that later produces a stream of benefits — as well. Targeting undisclosed self-dealing also responds to the core harm of lost information in its various forms. This could be accomplished by a freestanding disclosure statute similar in structure to 18 U.S.C. § 208, which criminalizes undisclosed conflicts of interest by federal employees of the Executive Branch. The proposed addition of section 1346A, which responds to the Skilling decision and reinstates the undisclosed self-dealing theory of fraud, also fulfills that objective.
“Public corruption is complex, sometimes subtle, but always harmful. And a particularly harmful form of corruption now lies beyond the reach of federal law. Enlarging the terms of the current statutory scheme in response to recent Supreme Court decisions will also clarify its scope and thus decrease vagueness and overbreadth.”
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