SCOTUSblog by Ellen Podgor 9/25/2019
The circumstances surrounding the “Bridgegate†controversy are appalling. The thought that automobile drivers and their passengers were subjected to a “crippling gridlock†in an alleged effort to retaliate against a mayor who failed to endorse then-Governor Chris Christie in his reelection bid is beyond comprehension. Likewise, lying about the purpose of the lane realignment is the height of unethical conduct. It is easy to conclude that the conduct involved is wrong. But conduct that is wrong, unethical or potentially harmful is not necessarily criminal under existing federal laws. This is especially important when the conduct relates to politics.
Many perceive corruption to be a crime. In fact, however, corruption is not a federal crime, unless one is speaking about corruption of seamen and confederating with pirates, activities that are prohibited under the only federal statute in Title 18 of the U.S. Code that actually includes the term “corruption†in the title of the statute. A host of federal statutes beyond the criminal code use the term “corruption†with regard to programs that encourage good governance, such as providing aid to countries in order to combat corruption. And, of course, sentencing provisions reference corruption offenses. One might find the term “corruption†in legislative findings regarding extortionate credit transactions, for example. So too, there is the Foreign Corrupt Practices Act, but the conduct outlined in these statutes is limited, with certain parties, such as foreign officials, excluded from prosecution. The Racketeer Influenced and Corrupt Organizations Act includes an entire definition statute that covers terms such as “racketeering activity†and what is meant by the term “enterprise.†But there is nothing to tell us what “corrupt†means because the term is not included in the description of prohibited activities under RICO.
Although some federal statutes do require a corrupt intent or a corrupt act, corruption by itself is not an offense. Corruption is a sociological concept with a long history that sometimes includes discussion of fraud. As with many such terms, like white-collar crime for example, laws have been developed to address conduct that falls within the sociological framework. But to claim that corruption or white-collar crime should by itself be punishable puts us back to a day of common-law criminal concepts and not the statute-based society that we have become. As aptly stated by Special Counsel Robert Mueller in the Mueller report, “collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.†And just as Mueller limited his review to potential crimes existing in the federal code, so should the Supreme Court focus on the specific language found in the applicable statutes under review in Kelly v. United States.
More:
https://www.scotusblog.com/2019/09/symposium-corruption-is-not-a-crime/#more-289277
