Proving bribery ain’t easy

Law-breaking lobbyist Jack Abramoff may be furiously singing to the
feds, but prosecutors still face high hurdles in pursuing his former
congressional allies.

Bribery and illegal gift cases can be
elusive, in part because of a precedent incited by a band of
politically ambitious California fruit-and-nut growers. That precedent,
involving the cooperative once known as Sun-Diamond Growers of
California, shadows the rapidly unfolding Abramoff investigation.

“At least in some of the high-profile cases, it has made prosecutors
review their evidence a lot more carefully,” said Eric Bloom, the
attorney who won the 1999 Sun-Diamond case before the Supreme Court.
“These are not easy cases to make.”

More broadly, Abramoff’s
unraveling showcases the reach and limitations of federal
anti-corruption laws. They can be exacting, for politicians and
prosecutors alike.

“These are hard cases,” agreed Rory Little, a
former federal prosecutor who now teaches at the University of
California’s Hastings College of the Law. “There is no guarantee that
they can nail anybody down.”

Politically, the fallout from
Abramoff’s collapse is already being felt. House Majority Leader Tom
DeLay’s decision to permanently step down from his leadership position
followed by only a few days the guilty pleas of the lobbyist DeLay once
called one of his “closest and dearest friends.”

Legally, the next steps enter deceptively complicated territory.

So far, no government official has yet been charged with a crime.
Abramoff’s plea agreement, though, ties his actions directly to at
least one sitting member of Congress: Ohio Republican Bob Ney. Half a
dozen other lawmakers also face scrutiny, according to various news

Abramoff admitted that he and his colleagues gave
“things of value” to Ney and congressional staffers. These included a
trip to the 2001 Super Bowl, a 2002 golf trip to Scotland and numerous
tickets for concerts and sporting events.

Abramoff doled out the
gifts “in exchange for a series of official acts and influence,”
according to the plea agreement. These ranged from inserting statements
into the Congressional Record to backing legislation sought by
Abramoff’s clients.

But just because Abramoff admits to handing out goodies doesn’t mean prosecutors can prove the recipients broke a law.

“You can’t just show venal corruption, where you sniff something and
say, ‘That smells bad,'” said Little, who formerly served as associate
deputy attorney general. “You really have to show something specific.”

Two potential crimes might be involved. One is bribery. This requires
“something of value” being provided with the intent to influence a
specific act; there must be a concrete quid pro quo.

November, for instance, former Republican congressman Randy “Duke”
Cunningham pleaded guilty to taking cash and gifts totaling more than
$2.4 million from defense contractors that he then tried to
specifically help obtain defense contracts.

The other potential
crime involves illegal gratuities, and it does not require the same
kind of quid pro quo as the bribery law. It’s not as easy to prove as
it would have been had Sun-Diamond lost its 1999 Supreme Court case.

That year, the co-op representing some 5,000 California growers of
raisins, figs, walnuts, prunes and hazelnuts was fighting charges it
had provided illegal gratuities to former Agriculture Secretary Mike
Espy. The gifts included tickets to the U.S. Open tennis tournament,
luggage, expensive meals and a crystal bowl.

A jury convicted
Sun-Diamond, after a judge reasoned it was illegal to give any gift
simply because of the office the recipient held; for instance, out of a
general desire to keep the lawmaker happy.

The Supreme Court
ruled otherwise, in the United States v. Sun-Diamond Growers of
California decision that now has renewed relevance.

“In order to
establish a violation … the government must prove a link between a
thing of value conferred upon a public official and a specific
‘official act’ for or because of which it was given,” Justice Antonin
Scalia wrote in 1999.

Otherwise, Scalia warned, prosecutors
might imprison farmers who invited the secretary of agriculture to
lunch, or school principals who gave a baseball cap to the secretary of

Instead, prosecutors must tie together gifts and
actions, by showing gifts were “for or because” of the official acts.
Some lawyers describe it as a reward for a past or future act. The
illegal gratuity law punishes it with two years in prison, compared
with 15 for bribery.

Abramoff’s testimony may be one way to
link the gift and the act. Another could be if prosecutors show a
pattern, by accumulating multiple instances of gifts and actions.

“Abramoff as a cooperating witness will be helpful, ” Bloom said, “but
you know Abramoff is also going to have pretty big problems on the
stand, so they’ll need some corroborating evidence as well.”