Coeditor, The Anticorruption Manual: A Guide for State ProsecutorsDirector, NAGTRI Center for Ethics and Public Integrity
The Center for Ethics & Public Integrity is thrilled to announce the release of The Anticorruption Manual: A Guide for State Prosecutors. This thirty-chapter book is the first-ever manual written with state anticorruption enforcers as the primary audience.
NOW AVAILABLE: The Anticorruption Manual provides a comprehensive overview of prosecuting corruption in the United States. Purchase a copy.
This article is the first in a series designed to introduce you to The Anticorruption Manual. This introductory piece has three parts. Part One explains why the Manual is important and timely. Part Two explores challenges faced by state-level corruption prosecutors, and how the Manual can address some of those challenges. Part Three provides a preview of the six sections of the Manual, which range from an exploration of legal and practical issues in cases involving targets in different branches of the government, to specific investigative techniques and challenges, to ethical questions that may arise in corruption cases.
Later articles in this series will look more closely at each of those six sections, including excerpts of selected chapters.
I. The Anticorruption Manual Addresses the Need for Increased Enforcement of State Corruption Statutes
In three cases in the past five years, the U.S. Supreme Court has curtailed the reach of federal corruption law and has recognized that state grand jury subpoenas can be enforced against even the President of the United States.
a. McDonnell v. United States (2016)
In 2016, the Supreme Court reversed a federal bribery conviction of Robert McDonnell, the former governor of Virginia.1 In doing so, it noted federalism concerns, citing cases where it previously noted the need to avoid intruding into states’ jurisdiction.2 In the McDonnell case, the unanimous Court reaffirmed that state governments have “the prerogative to regulate the permissible scope of interactions between state officials and their constituents.”3 In concluding that a narrow interpretation of “official act” was appropriate, the Court “decline[d] to ‘construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards’ of ‘good government for local and state officials.’”4 Because the jury had been given an overinclusive instruction as to the meaning of “official act,” the Court concluded that the jury may have convicted McDonnell for lawful conduct, so it vacated McDonnell’s conviction.5
b. Bridgegate (Kelly v. United States (2020))
In early 2020, the Supreme Court bluntly restated its view of the limited role of federal prosecutors in the so-called “Bridgegate” case when it reversed another federal conviction of a state official.6 Federal prosecutors had charged state officials with federal program fraud, which the Court construed as requiring not just deception, but that the object of the deception was obtaining “property.”7 The property requirement prevents the federal statute “from criminalizing all acts of dishonesty by state and local officials.”8 Again, the Court admonished that the federal fraud statutes “did not authorize federal prosecutors to set standards of disclosure and good government for local and state officials.”9 The again-unanimous Court wrote: “The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify,” and cited a New Jersey state statute that it implied would cover the conduct at issue.10
c. Trump v. Vance (2020)
A few months after Kelly, the Supreme Court concluded that state prosecutors’ grand jury subpoenas can be issued even to a sitting president—making clear that, with some exceptions, state enforcers have broad investigative powers.11 As the Court held, “if the state subpoena is not issued to manipulate, the documents themselves are not protected, and the Executive is not impaired, then nothing in Article II or the Supremacy Clause supports holding state subpoenas to a higher standard than their federal counterparts.”12
The lesson from these three cases is that state prosecutors may be the only ones with power to charge certain corrupt officials, and that the Supreme Court has concluded that they have similar powers as their federal counterparts to investigate even high-level federal elected officials.13
II. Opportunities and Challenges for State-Level Corruption Enforcement
State prosecutors can and do have the capacity to carry out sophisticated investigations and to enforce state criminal statutes designed to address corruption. High-profile state cases—like the 2016 trial of the Alabama state speaker of the house14 or 2019 charges in a sprawling bribery scheme involving New Jersey public officials and political candidates15—make it clear that state prosecutors can effectively enforce their own state standards of good government.
State and local authorities handle a large volume of criminal prosecutions. Most criminal cases are charged at the state, rather than federal, level. Over 2,400 state and local prosecutors’ offices in the United States16 employ nearly 25,000 prosecutors.17 In an average year, over 15 million criminal cases are charged in state courts.18 Approximately two million of those cases include felony charges.19
By contrast, only 94 U.S. Attorneys Offices20 employ approximately 5,800 federal prosecutors.21 In 2019, 90,473 defendants—approximately one-third of whom were charged with immigration-related offenses—were charged in federal court.22 A little over 400 of those cases included “official corruption” charges.23
Nationwide data about the number of corruption cases brought by state prosecutors, however, is not readily available, as there are multiple courts and prosecutors’ offices and no unitary online court filing system, unlike in the federal system.24 The Court Statistics Project maintains state court data, but does not isolate data on prosecution of public corruption crimes. Some crimes that are likely to be charged in corruption cases are in the “Felony Property” category, which includes bribery, embezzlement, extortion, and fraud. 25 Felony Property also includes crimes completely unrelated to corruption, such as auto theft and counterfeiting, for example.26 In 2018, the Court Statistics Project reported that about 29% of the felony cases in state court were in the Felony Property category.27 Public corruption cases likely comprise only a fraction of these 571,571 cases.28
Another apparent difficulty is that state prosecutors may face pressures deterring them from undertaking corruption prosecutions. In offices without a tradition of bringing corruption cases, prosecutors may not know how to undertake an investigation or may not have experience analyzing financial records. They may have limited experience dealing with media interest in a case that involves violations of citizens’ trust,29 or be broadsided by defenses that often include attacking the prosecutor’s motives.30 Prosecutors with limited budgets and wide jurisdiction may focus on crimes that appear to have a more immediate impact on public safety, rather than devoting resources to developing the skills necessary to investigate and charge complex, white collar crimes. That corruption cases may involve powerful targets who have the ability to exact a political cost may provide additional deterrence to undertaking them.31 State prosecutors also face investigative hurdles that their federal counterparts do not, including unwieldy processes to obtain witnesses and evidence from outside of their state.32
Local and state offices can overcome the challenges to prosecuting public corruption crimes through a combination of political will and practical guidance. As a political matter, the head of the office (often an elected official) must choose to prioritize corruption enforcement, and to provide staff with the support—both in resources and job security—to undertake often difficult, sensitive investigations without fear or favor. Other challenges can be met by providing training and resources to help prosecutors learn how to ethically and effectively bring corruption cases.33 The Anticorruption Manual is designed to provide the foundation necessary to prepare state prosecutors to take on corruption cases. By raising awareness of the need for corruption enforcement at the state level, and by providing a comprehensive guide to investigating, charging, and trying corruption cases, The Anticorruption Manual aims to empower and educate state prosecutors so they can heed the Supreme Court’s advice to rectify public corruption occurring at the state or local level without relying on federal laws and enforcers.
III. The Anticorruption Manual
The Anticorruption Manual contains six sections, thirty chapters, and more than six hundred pages, all of which address areas that are likely to be of interest to corruption prosecutors. It begins with an overview of different types of criminal corruption cases and ends with chapters describing non-criminal remedies available to address corruption in administrative proceedings or civil courts. Throughout the Manual, authors address investigations, trial issues, common defenses, and ethical issues. One section provides an overview and analysis of state and territory criminal laws that are available to address corruption. It also compares those laws to their federal analogs. The chapters intentionally intersect at times, as our primary reader is a busy prosecutor who reads chapters, a la carte, as specific issues arise.
a. Section One: Species of Corruption Cases
In this section, a range of authors draw on expertise they developed as prosecutors to discuss some of the opportunities and challenges inherent in addressing corruption in different areas of the government, including:
- The three branches of the government—judicial, executive, or legislative.
- Certain governmental systems—such as the process to bid for contracts and elections.
- Local government—an area particularly germane to state and local prosecutors.
- Police corruption—which includes information about methods used by federal prosecutors (including cooperation agreements, non-prosecution agreements, and immunity orders) to secure witnesses’ testimony.
- Union leadership—which includes a discussion of the use of monitors, an oversight mechanism more commonly employed by federal prosecutors, but one that state and local prosecutors may want to consider in cases involving entities that have been corrupted.
The chapter addressing judicial corruption is available for download.
|1.1 Judicial Corruption: A Threat to Justice||Daniel G. Cort|
|1.2 Executive Corruption: The Trial of the Pennsylvania Attorney General||District Attorney Kevin R. Steele, Michelle A. Henry, Thomas W. McGoldrick, & Robert M. Falin|
|1.3 Legislative Corruption||Howard S. Master|
|1.4 Bid Rigging on Public Contracts||Emily Myers|
|1.5 Local Corruption Investigations: The Quintessence of Official Misconduct Prosecutions||Judge David Navarro & Kathleen Farrell Duhig|
|1.6 Prosecuting Union Corruption||Glen McGorty & Rebecca Ricigliano|
|1.7 Election Crimes||Tim VanderGiesen|
|1.8 Police Corruption||Amie N. Ely|
b. Section Two: Investigating Corruption Cases
This section looks closely at investigating corruption cases, and also provides important guidance for investigations of other complex cases. Chapters address:
- The role prosecutors should play in an investigation.
- Considerations to weigh when deciding when to move from covert to overt stages of an investigation.
- Specific investigative tools—like wiretaps, online evidence, and undercover operations.
- Outside resources—including other prosecutors’ offices, law enforcement entities, and resources, often funded by the government, for obtaining or analyzing evidence.
- Effective and ethical management of parallel/concurrent investigations.
|2.1 The Prosecutor’s Role in Anticorruption Investigations||Steven P. Solow & Johnjerica Hodge|
|2.2 Timing of Covert & Overt Aspects of the Investigation||Carrie H. Cohen|
|2.3 A Practitioner’s Guide to Wiretaps in Public Corruption Investigations||Wesley Cheng|
|2.4 Tools for Obtaining Online Evidence||Michael Chu
|2.5 Working Effectively with an Undercover Officer, Confidential Informant, or Cooperating Witness||Daniel G. Cort & Stacy P. Aronowitz|
|2.6 Attorney General Office Cooperation with Federal & Local Partners When Investigating & Prosecuting Public Corruption||Robert Shapiro & Daniel Pietragallo|
|2.7 Forensic Assistance Resources||Christine A. Hoffman|
c. Section Three: Criminal Corruption Statutes
In some states, there is limited case law construing statutes typically charged in corruption cases. Prosecutors and lawmakers may also wonder how statutes in their own state compare to those in others. Section three provides an overview of the types of federal and state statutes most often charged in cases involving actions that are likely to be considered corruption. This section is designed to help prosecutors consider what statutes may be appropriate for charging acts of corruption and to give prosecutors, legislators, and citizens a better understanding of the laws and penalties available to address criminal corruption in their own and other jurisdictions.
|3.1 Bribery & Illegal Influence Crimes||Ann Ratnayake Macy|
|3.2 Misuse of Public Office & Public Money||Marissa G. Walker|
|3.3 Transparency & Disclosure in Government||Marissa G. Walker|
|3.4 Criminal Conflicts of Interest||Marissa G. Walker|
d. Section Four: The Corruption Trial & Common Defenses
Section four focuses on three areas of particular interest to corruption prosecutors: jury addresses, the introduction of complex (often financial) data, and common defenses in corruption cases. Rather than seeking to provide general information about trial management in criminal cases—a broad topic that is the subject of several books34—the first two chapters of this section focus on areas that seemed most prone for misstep in corruption cases. The third chapter in the section is a comprehensive discussion of defenses by anticorruption maven Peter Henning, and it is a must-read for every corruption prosecutor initiating an investigation.
|4.1 Addressing the Jury in a Public Corruption Trial||Amie N. Ely|
|4.2 Introducing Complex Data at Trial||Steve Grimes & Jeff Perconte|
|4.3 Defenses in Public Corruption Prosecutions||Prof. Peter J. Henning|
e. Section Five: Ethical and Strategic Considerations in Corruption Cases
Potential ethical issues are discussed throughout the book. The first chapter of section five provides a roadmap to those discussions and addresses several additional areas that are not examined elsewhere in the book. Two other chapters discuss areas that can pose greater difficulty in corruption cases than in other types of criminal cases: the timing of bringing charges and media relations.
|5.1 Ethical Issues for Corruption Prosecutors: An Overview||Victor Olds, Beverly M. Ma, & Amie N. Ely|
|5.2 The Timing of Charges in Corruption Cases||Anthony A. Picione & Peter Lee
|5.3 Media Relations in Criminal Corruption Cases: Balancing the Prosecutor’s Duties to Protect the Rights of the Accused & to Keep the Public Informed||Prof. Jessica A. Roth
f. Section Six: Civil and Administrative Enforcement, Asset Forfeiture, and Collateral Consequences of Corruption
The final section of the book addresses ways to tackle corruption through administrative and civil remedies. One chapter describes the work done by the Board of Ethics and Government Accountability in the District of Columbia to enforce the District’s ethics laws. Another examines federal civil enforcement mechanisms—in particular, civil racketeering charges and violations of 42 U.S.C. § 1983—that have been successfully used by attorney general offices to address corruption and systemic malfeasance. The third chapter surveys remedies like removal from office and dissolution of corporations that can be used to ensure that those who have violated the public trust no longer have access to the position or status they abused. The last chapter explains how federal asset forfeiture and restitution can be used to deny corrupt officials the fruits of their crimes and to help the public by restoring funds to the entities harmed by the corruption. The chapter provides some useful guidance for state enforcers to consider when determining whether to seek to use their own forfeiture and restitution laws.
|6.1 Administrative Remedies: How Ethics Boards Deter & Punish Corrupt Behavior||Darrin P. Sobin|
|6.2 Civil Corruption Enforcement in Federal Court: Using Section 1983 & RICO to Fight Corruption||Amie N. Ely|
|6.3 Collateral Consequences of Corruption: Forfeiture of Office, Loss of Pension, Ban on Future Public Employment, & Other Tools||Amie N. Ely|
|6.4 Asset Forfeiture in Public Corruption Cases||Alice W. Dery|
Corruption enforcement at the state level is increasingly necessary, given Supreme Court decisions narrowing the scope of federal statutes. To uphold the rule of law, state prosecutors must have the training, tools, and resources necessary to investigate, charge, and try corrupt officials. Thanks to the expertise shared by our thirty-five authors, The Anticorruption Manual provides important guidance for state prosecutors seeking to enforce standards of good government for their own local and state officials.
- McDonnell was charged with violating 18 U.S.C. §§ 1343, 1349 (honest services fraud), § 1951(a) (Hobbs Act extortion), and § 1014 (false statement). McDonnell v. United States, 136 S. Ct. 2355, 2365 (2016). The honest services fraud and Hobbs Act charges employed a definition of “official act” from a federal bribery statute, 18 U.S.C. § 201(a)(3), however, and the prosecutors argued that McDonnell violated the charged statutes by accepting bribes. McDonnell, 136 S. Ct. at 2365. As a result, McDonnell is often treated as bribery case even though the charged statutes also encompass conduct other than bribes. For more about this case, see Amie Ely, What McDonnell v. United States Means for State Corruption Prosecutors, Nat’l Ass’n of Att’ys Gen. (May 28, 2018), https://www.naag.org/attorney-general-journal/what-mcdonnell-v-united-states-means-for-state-corruption-prosecutors/. [↩]
- McDonnell, 136 S. Ct. at 2373 (citations omitted). [↩]
- Id. [↩]
- Id. (citing McNally v. United States, 483 U.S. 350, 360 (1987) and United States v. Enmons, 410 U.S. 396, 410-11 (1973) (rejecting a “broad concept of extortion” that would lead to “an unprecedented incursion into the criminal jurisdiction of the States” [↩]
- McDonnell, 136 S. Ct. at 2375. [↩]
- Kelly v. United States, 140 S. Ct. 1565, 1571-73 (2020). [↩]
- Id. at 1571. [↩]
- Id. [↩]
- Id. (quotation omitted). [↩]
- Id. at 1571 (citing N.J. Stat. Ann. § 2C:30–2). See also Marissa G. Walker, Misuse of Public Office & Public Money, in The Anticorruption Manual: A Guide for State Prosecutors 316, 317 n.3 (Amie N. Ely & Marissa G. Walker eds., 2021) (discussing the Kelly decision and state official misconduct law). [↩]
- Trump v. Vance, 140 S. Ct. 2412, 2429 (2020). [↩]
- Id. at 2429-30 (internal citations omitted). [↩]
- Note, however, that state prosecutors’ power to charge federal officials for their authorized conduct in office is limited by the Supremacy Clause. See, e.g., In re Neagle, 135 U.S. 1, 75 (1890). [↩]
- Ex parte Hubbard, No. 1180047, 2020 Ala. LEXIS 54, at *2-3 (Ala. Apr. 10, 2020); Brian Lyman, The Mike Hubbard Case: A Timeline, Montgomery Advertiser (May 19, 2016), https://www.montgomeryadvertiser.com/story/news/politics/southunionstreet/ 2016/05/19/mike-hubbard-case-timeline/84542986/. [↩]
- Michael Gold, $10,000 in a Coffee Cup: 8 Swept Up in N.J. Political Corruption Case, N.Y. Times (Dec. 24, 2019), https://www.nytimes.com/2019/12/24/nyregion/new-jersey-corruption-charges.html. [↩]
- Justice For All: Who Prosecutes in America?, Reflective Democracy Campaign (July 2015), https://wholeads.us/research/justice-for-all-report-elected-prosecutors/. [↩]
- Bureau of Justice Statistics, U.S. Dep’t of Justice, Prosecutors in State Courts, 2007- Statistical Tables 2 (Dec. 2011), https://bjs.ojp.gov/content/pub/pdf/psc07st.pdf. [↩]
- Nat’l Ctr. for State Courts, Court Statistics Project: State Court Caseload Digest 2018 Data 13 (2020), https://www.courtstatistics.org/__data/assets/pdf_file/0014/40820/2018-Digest.pdf [hereinafter Court Statistics Project Digest]; Court Statistics Project: Trial Court Caseload Overview Caseload Detail-Criminal, Nat’l Ctr. for State Courts, https://www.courtstatistics.org/csp-stat-nav-cards-first-row/csp-stat-criminal (last visited July 22, 2021) [hereinafter Court Statistics Project Detail]. [↩]
- Court Statistics Project Digest, supra note 18 at 14. [↩]
- Office of the U.S Attorneys, U.S. Dep’t of Justice, U.S. Attorneys Listing (June 21, 2021), https://www.justice.gov/usao/us-attorneys-listing. [↩]
- Daniel Richman, Political Control of Federal Prosecutions: Looking Back and Forward, 58 Duke L.J. 2087, 2088 (2009). [↩]
- Admin. Office of the U.S. Courts, Federal Judicial Caseload Statistics (2019), https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2019. [↩]
- The Transactional Records Access Clearinghouse (TRAC) at Syracuse University provides comprehensive overviews of federal prosecutions, both due to its ability to access public federal court records and through Freedom of Information Act litigation. See, e.g., Official Corruption Prosecutions Have Increased, Transactional Records Access Clearinghouse (May 4, 2021), https://trac.syr.edu/tracreports/crim/646/. [↩]
- CEPI is in the beginning stages of filling this gap through the ongoing development of its pilot State Corruption Cases Database. [↩]
- Nat’l Ctr. for State Courts, Court Statistics Project: State Court Guide to Statistical Reporting 18-20 (Aug. 25, 2020), https://www.courtstatistics.org/__data/assets/pdf_file/0026/23984/state-court-guide-to-statistical-reporting.pdf. [↩]
- Id. [↩]
- Court Statistics Project Digest, supra note 18 at 14. [↩]
- Court Statistics Project Detail, supra note 18 (filtering data by year 2018 and case type felony property). [↩]
- See generally Jessica A. Roth, Media Relations in Criminal Corruption Cases, in The Anticorruption Manual: A Guide for State Prosecutors 563, 563 (Amie N. Ely & Marissa G. Walker eds., 2021). [↩]
- See generally Peter J. Henning, Defenses in Public Corruption Prosecutions, in The Anticorruption Manual: A Guide for State Prosecutors 493, 493 (Amie N. Ely & Marissa G. Walker eds., 2021). [↩]
- Luther Strange, Sen. Luther Strange: The Importance of Taking on Corruption, AL.com (Mar. 7, 2019), https://www.al.com/opinion/2017/12/sen_luther_strange_the_importa.html (describing how, after his office charged a powerful state legislator, other legislators threatened to reduce corruption prosecutor’s budget to zero). [↩]
- Darrell E. White II, Subpoenaing Out-of-State Witnesses in Criminal Proceedings: A Step-by-Step Guide, Attorney Gen. J. (May 18, 2021), https://www.naag.org/criminal-law/attorney-general-journal/subpoenaing-out-of-state-witnesses/. [↩]
- For example, CEPI has partnered with the U.S. Department of Justice’s Money Laundering and Asset Recovery Section (MLARS) to provide MLARS’s Financial Investigations Seminar in a mixed setting of federal and state prosecutors and law enforcement officers. [↩]
- See generally Thomas A. Mauet & Stephen D. Easton, Trial Techniques and Trials (11th ed. 2021). [↩]