If You've Appreciated The Service You've Received, Consider Tipping Your Supreme Court Justices!
Supreme Court conservatives explain how -- hypothetically -- if one of them took a bunch of gifts under the table that's not really so bad, is it?
(Photo by Alex Wong/Getty Images… with slight edit)
Rewriting the fabric of constitutional order is a tough job. The Supreme Court’s Term is supposed to be over already and yet they’re still churning out opinions late into June. Sure they’re public employees, but don’t you wish you could slip them a little something under the table… or maybe a lot of something under the table? Well, the Supreme Court didn’t exactly open the bribery floodgates today, but it wanted everyone to know that… maybe if someone did give a public official millions of dollars it might not be so bad.
HYPOTHETICALLY!
A Law Firm Checklist For Successful Transaction Management
In Snyder v. United States, the 6-3 conservative majority ruled that while federal bribery laws might prevent an official from taking money before taking a corrupt act, there’s no reason why they couldn’t take money after the fact.
Section 666 of Title 18 makes it a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. §666(a)(1)(B). That law prohibits state and local officials from accepting bribes that are promised or given before the official act. Those bribes are punishable by up to 10 years’ imprisonment.
Writing for the Court, Justice Keggerator pulls a bit of a rhetorical three card monte here. The statute says what he lays out in the first sentence. The next two sentences are his personal Google AI summary of the law. It certainly does prohibit bribes, but Kavanaugh makes it sound like the statute explicitly cabins itself to before-the-fact bribery when the text does no such thing. So much for textualism!
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.
Sponsored
Trust The Process: How To Build And Manage Workflows In Law Firms
A Law Firm Checklist For Successful Transaction Management
How Savvy Lawyers Build Their Law Firm Rate Sheet
How To Build And Manage Your Law Firm Rate Sheet
Except plaques and framed photos won’t provide the requisite intent unless this is the most banal politician ever. On the other hand, the expectation of a $13,000 check — what the defendant received in this case — might sway a few public contract awards. The statute was well suited to distinguish between a Starbucks card or a trip to the Olive Garden and cutting a $13,000 check to a public servant. But Kavanaugh pretends intent is an unfathomable mystery and opts to ditch the whole law against gratuities instead.
Can it get dumber? Friends, it can get dumber:
A family gives a holiday tip to the mail carrier. Parents send an end-of-year gift basket to their child’s public school teacher. A college dean gives a college sweatshirt to a city council member who comes to speak at an event. A state legislator’s neighbor drops off a bottle of wine to congratulate her for her work on a new law.
Was he 10 beers in while writing this? Frankly, pour a little out for the clerks who were almost certainly tasked with brainstorming innocuous analogies to awarding a million dollar contract and receiving a 5-figure kickback and could only muster “hey, maybe we can say it’s like a college dean giving a speaker a sweatshirt.”
Justice Jackson, in dissent, marvels at the stupidity:
Sponsored
How To Build And Manage Your Law Firm Rate Sheet
Not All Legal AI Is Created Equal
Other prosecutions of gratuities that the Government has brought under §666—successfully or unsuccessfully—do not remotely resemble the holiday tips, gift baskets, and sweatshirts around which the majority crafts its decision. That is, even as the Government has consistently maintained that §666 covers gratuities, its actual prior prosecutions under §666 were not the dragnet for public school teachers, soccer coaches, or trash collectors that the majority conjures.
Kavanaugh’s bizarre conclusion that the only solution to the “how could we ever deal with Johnny giving teacher an apple?” conundrum was to declare after-the-fact gratuities the exclusive province of state and local governments because they already have laws for this behavior. If this is true — and it’s not — why would the federal statute then still punish before-the-fact bribery? State and local governments have laws against that too and we all agree Congress can still legislate there. There’s no coherent response and Justice Jackson takes issue with that.
Snyder’s absurd and atextual reading of the statute is one only today’s Court could love. Ignoring the plain text of §666—which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded”—the Court concludes that the statute does not criminalize gratuities at all. This is so, apparently, because “[s]tate and local governments often regulate the gifts that state and local officials may accept,” ante, at 1, which, according to the majority, means that §666 cannot.
There is a superficial logic to the idea that “you can’t corruptly induce an action that the official already took.” But this ignores the iterative nature of politics. The newly enriched mayor is better suited to win reelection. The reelected mayor is positioned to award further contracts. And the mayor has a more than reasonable expectation that compensation is coming on the back end. “Gratuities” are just bribes for the unspecified future quid pro quo. That’s why Congress specifically wrote a statute that would cover such after-the-fact payments.
This is all about state and local officials (and tribes… in an important nod to Gorsuch), but it’s impossible to read the majority’s breezy dismissal of after-the-fact payments as innocent trifles without considering the upwards of $6 million Clarence Thomas has taken over the years. If Clarence Thomas went around hinting that he might be forced to leave and open the door to a less conservative replacement without more dough on the table, he obviously wasn’t looking to be proactively bribed to issue right-wing opinions. He’ll happily do those for free. But when he collected gifts from his “friends” he was in a very real sense getting paid to not take the official act of retiring. Not unlike how someone might keep a friendly mayor financially satisfied so they keep the gravy train running instead of bolting for higher office or a cushy private sector job.
Kavanaugh’s dubious legal reasoning makes a lot more sense when one reads his casually brushing off $13,000 checks as no different than a neighborly bottle of wine as less a judicial opinion than a fittingly gratuitous defense of Thomas.
Opinion available on the next page…
Earlier: Supreme Court Concerned That Bribery Law Might Prevent Their Friends From Taking Bribes
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
