By Isabelle Bouvier, FTC law clerk

The Supreme Court stands apart from the rest of the government when it comes to the ethics rules they’re required to follow.

That said, there are basic principles about bribery and corruption codified in federal law that should inform the Court’s jurisprudence when cases dealing with public malfeasance come before them.

But then again, this is the U.S. Supreme Court.

As recently as last month’s ruling in Snyder v. U.S., the Court has continued to narrowly interpret statutes relating to bribery, fraud and corruption so as to enable influential individuals to abuse their power without consequences. 

Here, we outline five cases from the last 15 years illustrating SCOTUS’ leniency on corruption.

Snyder v. United States (2024)

Summary:

• Mayor of Portage, Ind., James Snyder solicited and accepted $13,000 from Great Lakes Peterbilt after the city spent $1.1 million to purchase five garbage trucks from the company. The feds said the payment was a gratuity for the city’s truck contract, but Snyder claimed it counted as a payment for consulting services for Peterbilt
• Snyder was convicted of federal funds bribery in violation of 18 U.S.C. §666(a)(1)(B)
• Snyder argued the evidence did not support a finding that there was an agreement to exchange money for the truck contracts before they were awarded. and that without prior quid pro quo agreement, §666 cannot apply. The district court rejected his interpretation and the Sixth Circuit affirmed
• Question:
  • Does 18 U.S.C. §666(a)(1)(B) criminalize gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions?

Majority Opinion:

• 6-3 for Snyder
• Majority opinion by Justice Kavanaugh joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Barrett
• Held that §666 makes it a crime for state and local officials to “corruptly” solicit, accept or agree to accept bribes that are promised or given before the official act, but that the statute does not apply to acceptance of “gratuities” made after the official act

Concurring/Dissenting Opinions:

• Concurring opinion by Justice Gorsuch
• Dissenting opinion by Justice Jackson joined by Justices Sotomayor and Kagan: “Snyder’s absurd and atextual reading of the statute is one only today’s Court could love,” and that the majority “ignores the plain text” of the statute

Our Thoughts:

• Given recent precedent set by similar cases, this ruling is very much in line with this Court’s narrow interpretations of bribery statutes in which many forms of bribery remain permissible for government officials
• Considering the ruling in Kelly (see below), in which the Court held that under the same statute a scheme must aim to obtain money or property, this ruling is not surprising, but it’s nevertheless disappointing

Percoco v. United States (2023)

Summary:

• In 2012 New York Gov. Andrew Cuomo launched the “Buffalo Billion” initiative to develop Western New York
• The defendant-appellants, who owned construction companies, used their influence to give contracts to developers of their choosing
• They were charged and convicted of conspiracy to engage in wire fraud, and in 2018 a jury found them guilty on all counts
• Joseph Percoco, the former executive deputy secretary to Cuomo, was convicted of violating a federal fraud law that criminalizes depriving members of the public of the tangible right to “honest services”
• Question: 
  • Can a private citizen who has informal political or other influence over governmental decision-making owe a fiduciary duty to the general public such that he can be convicted of honest-services fraud?

Majority Opinion:

• Unanimous decision for Percoco
• Majority opinion by Justice Alito
• Held that yes, a private citizen with informal political or other influence over governmental decision-making can be convicted of honest-services fraud, but in this case, the jury instructions leading to Percoco’s conviction were incorrect

Concurring/Dissenting Opinions:

• Justice Gorsuch, along with Justice Thomas, concurred in the judgment, agreeing with the majority, but they expressed concern with the vagueness of the definition of “honest-services fraud”

Our Thoughts:

• Similar to Skilling (see below), Percoco involves concern over jury instructions, which points to larger concerns over how lower courts are handing bribery trials
• Because the jury instructions were found to be vague, the applicability of the fraud statute was pushed to the side

Kelly v. United States (2020)

Summary:

• After the mayor of Fort Lee, N.J., refused to endorse the 2013 reelection bid of then-Gov. Chris Christie, defendants William Baroni (Christie’s top political appointment at the Port Authority) and Bridget Kelly (Christie’s former deputy chief of staff) conspired to create major traffic jams in Fort Lee by limiting access to the George Washington Bridge (i.e., Bridgegate)
• In 2015 a grand jury indicted Baroni and Kelly, convicting each on all seven counts, including conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, in violation of  18 U.S.C. §371, and the substantive offense underlying that conspiracy, 18 U.S.C §666(a)(1)(A). 
• The court argued that the defendants had defrauded the Port Authority of its property by claiming the lane closures were for a “traffic study” as opposed to revealing the real reason of political revenge.
• Question:
  • Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

Majority Opinion:

• Unanimous decision for Kelly
• Majority opinion by Justice Kagan
• Held that because Baroni and Kelly’s scheme did not aim to obtain money or property, it could not have violated the federal-program fraud or wire fraud laws
• The opinion argued that the federal wire fraud statute and the federal-program fraud statute are “limited in scope to the protection of property rights,” meaning the government would need to prove both that the defendants engaged in deception and that their object was money or property
• Under Court precedent, a scheme to alter a regulatory choice is not equivalent to the taking of property and therefore taking control of the bridge lanes does not constitute taking of government property. Further, the consequential increased costs of compensating traffic engineers and back-up toll collectors is an incidental product and not the statute-required “object of the fraud”

Concurring/Dissenting Opinions: 

• None

Our Thoughts:

• As Justice Kagan acknowledges in her opinion, “The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct.” The Court fully recognizes the corruption at hand in this case, but the specific statutes under which the defendants were not charged did not allow the Court to punish this behavior
• SCOTUS advancing such a narrow understanding of corruption — that it only applies if to the obtainment of money and/or property — excludes many cases in which corruption is used to obtain power, influence, or revenge. Under these particular statutes, SCOTUS is sanctioning many forms of corruption

McDonnell v. United States (2015)

Summary:

• After Bob McDonnell was elected governor of Virginia in 2009 , he met with Jonnie Williams, the founder and CEO of Star Scientific, which was trying to market a tobacco product called Anatabloc used to fight chronic inflammation. Star wanted the FDA to classify the product as a pharmaceutical, a more profitable classification. Williams provided the McDonnell family about $175,000 worth of gifts, including a Rolex and cash. The McDonnell family facilitated independent testing of Anatabloc as well as meetings and launch events while Mrs. McDonnell purchased, sold, and gifted Star products in such a way as to avoid reporting requirements. McDonnell promoted Anatabloc to government officials.
• The McDonnells were arrested and charged for corruption under federal statutes making it a felony to take “official action” in exchange for money, campaign contributions or any other thing of value. 
• In 2014. Bob McDonnell was found guilty on 11 counts of corruption. He appealed his conviction, arguing that the jury instructions given at trial did not properly define the term “official action.” The Fourth Circuit affirmed his conviction and held that the jury instructions were adequate
• Question:
  • Regarding federal bribery statutes, is an “official action” limited to the exercise or threatened exercise of actual governmental power, and if not, are the statutes unconstitutional?

Majority Opinion:

• Unanimous decision for McDonnell
• Majority opinion by Chief Justice Roberts
• Held that an “official act” must involve a formal exercise of governmental power on something specific pending before a public official
• The Chief Justice adopted a limited reading of the statute, arguing that arranging a meeting, contacting an official or hosting an event on their own do not rise to the level of an “official act” for the purpose of federal bribery statutes
• Previous Court precedent established that matters pending before a governmental official are not sufficient to find any action related to those matters to constitute an “official act.” Based on this interpretation of the statutory language, the Court argues that the jury instructions were in fact impermissibly broad

Concurring/Dissenting Opinions:

• None.

Our Thoughts:

• This decision made it more difficult to prosecute federal bribery an led to reversals in other cases with similar offenses (McDonnell has been cited more than 100 times) 
• The Court’s narrow, pliable definition of “official acts” permits many types of governmental corruption

Bonus (private corruption): Skilling v. United States (2010)

Summary:

• A Texas federal district court convicted former Enron CEO Jeff Skilling of conspiracy, securities fraud, making false representations to auditors and insider trading
  • On appeal, Skilling argued that the government prosecuted him under an invalid legal theory and that the jury was biased
• The Fifth Circuit affirmed the conviction but vacated his sentence and remanded the case for resentencing
  • The court determined that it was immaterial whether Enron’s board of directors knew or approved of Skilling’s fraudulent conduct
  • The court held that there was sufficient inflammatory pretrial publicity to bias the jury, but that the government had proven adequate jury screening
• Questions:
  • 1. Does the “Honest Services” fraud statute (18 U.S.C. §1346) require the government to prove that defendant’s conduct was intended to achieve “private gain,” and if not, is §1346 unconstitutionally vague?
  • 2. When there is a presumption of jury prejudice due to the defendant’s alleged conduct impacting the community alongside inflammatory pretrial publicity, may the government rebut the presumption of prejudice, and if so, must they prove beyond a reasonable doubt that no jurors were actually prejudiced?

Majority Opinion:

• 6-3 for United States
• Majority opinion by Justice Ginsburg
• Q1. not answered; Q2. not answered
• Held that Skilling obtained a fair trial without community prejudice from pretrial publicity
• Ginsburg claimed large differences between this case and others in which there was a presumption of juror prejudice Further, the trial occurred in Houston, a populous city where it’s easier to select unbiased jurors. The Court pointed out that while the jury did convict Skilling, it also acquitted him of nine counts. The Court held that §1346 forbids fraudulent deprivations of “the intangible right of honest services” and is properly confined to bribery and kickback schemes, which does not fall in the domain of Skilling’s alleged misconduct, and therefore his conduct is not covered by §1346.

Concurring/Dissenting Opinions:

• Justice Scalia, alongside Justices Thomas and Kennedy, concurred in part and concurred in the judgment. 
• Justice Sotomayor, joined by Justices Stevens and Breyer, concurred in part and dissented in part. Sotomayor agreed with the Court’s resolution of the “honest services fraud” claim but disagreed that Skilling received a fair trial.

Our Thoughts:

• The Supreme Court here adopts a very narrow definition of the federal statute prohibiting honest-services fraud which thus allows many other types of fraud that do not involve bribery or kickback schemes
• Many would likely support applying a limited definition to a statute accused of being unconstitutionally vague, but this limited definition also makes it more difficult to prosecute fraud under this statute