Federal Prosecutors Conjure the “Beast,” Sec. 666, in Anti-Corruption Witch Hunts
Corruption, or at least the widespread appearance of it, has caused a vast majority of Americans to lose faith in their government and public institutions. A 2011 Gallup poll found that just 14% of Americans feel the government can be trusted “a great deal.” Over the past, decade public confidence have declined in the nation’s military, Congress, the presidency, Supreme Court, law enforcement, banks, big business, organized labor, the public school system, and the media. The only two institutions to record a show of increased confidence are the nation’s criminal justice and religious institutions.
In 1984, Congress enacted the “theft or bribery concerning programs receiving Federal funds” law. Codified in Section 666 of Title 18, United States Code, a Senate Report stated that the law was “designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or state and local governments pursuant to a Federal program.”
While most Americans have a general perception that corruption is prevalent in every governmental venue, they have an unshakable belief that any program involving the distribution of Federal funds is rife with fraud and corruption. That’s why Section 666 has become known as the “beast in the federal criminal arsenal” which is being used more frequently by Federal prosecutors to go after who they believe are corrupt state and local officials like former Illinois Gov. Rod R. Blagojevich and former Bridgeport, Connecticut Mayor Joseph P. Ganim.
Section 666 covers the agents of both government organizations and private entities that receive over $10,000 in Federal funds. The Section has three main parts: Subsection (a)(1)(A) covers “embezzle[ing], steal[ing], or obtain[ing] by fraud” any property “valued at $5,000 or more” from organizations or agencies specified by statute.
Subsection (a)(1)(B) prohibits, among other things, state and local officials from “corruptly … solicit[ing] or demand[ing] anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.”
Subsection (a)(2) governs one who “gives, offers, or agrees to give” a bribe. The Federal circuits are split on the issue of whether the standard “quid-pro-quo” intent is necessary for a bribery conviction under this section. Not only has the courts found uncertainty in the law, the U.S. Justice Department’s own prosecution manual has concerns about it. The Department’s own manual states:
“The broad language of 18 U.S.C. § 666(a)(1)(A) and its legislative history raise a significant issue regarding the scope of the statute. The primary issue is whether the statute prohibits only the illegal taking of Federal program funds or property acquired with Federal funds or whether the statute prohibits the illegal taking of any funds or property of an organization or of a state or local government agency that receives Federal assistance. An example of the latter situation could be the theft by an employee of a federally funded organization of a $6,000 automobile acquired independently of the Federal funds. While an 18 U.S.C. § 641 (theft) prosecution could not be maintained in the hypothetical described above, case law now suggests that the hypothetical could violated 18 U.S.C. § 666.”
In addition to this uncertainty, the worse problem with Section 666 is that it can be, and has been, used to conduct political witch hunts with little apparent limitation.
For example, former White House Deputy Karl Rove pressured Federal prosecutors to go after former Alabama Gov. Dan Siegleman with this statute. This was evidenced by 44 State Attorneys General, Democrat and Republican, requesting that the House and Senate Judiciary Committees investigate not only Rove’s involvement in the charges being brought against Siegleman but in the alleged misconduct of the U.S. Attorney who handled the prosecution of the former governor.
This sort of legal uncertainty and political abuse occurs when Congress enacts a general law that has limitless scope and effect as does Section 666. Prior to the enactment of Section 666, the Government had (and still has) bribery and theft statutes on the books that governed political and official corruption. But, because the courts had so restricted their scope and effectiveness of these laws, Congress felt the need to create that “beast” of a law that would allow Federal prosecutors to target public officials with little or no meaningful evidence as evidenced in the Blagojevich and Siegleman cases.
Political and institutional corruption is a significant public concern. But our laws should be specific, and not general, when attacking these concerns. General laws like Section 666 always have unintended consequences that produce more harm than good. The Beast, along with other corruption and bribery statutes, needs Congressional action to remedy vague language and the potential for prosecutorial misconduct in these often high profile cases.