Justice Ketanji Brown Jackson is calling out her fellow justices for enabling grifters.
At the end of last week, the Supreme Court continued its assault on public corruption laws with a Thursday ruling that provides a roadmap to graft.
Interpreting a federal statute that prohibits public officials from accepting bribes, the majority held in Snyder v. United States that, so long as a gift is given as a reward after the official performs the corrupt act, no crime occurs.
Snyder is just the latest in a long line of cases issued by Chief Justice John Roberts’ court that have gutted public corruption cases. In recent years, the court has also cut back on the application of corruption statutes in several cases. As Jackson noted in her Snyder dissent, this “absurd and atextual reading of the statute is one only today’s Court could love.”
As Jackson noted in her Snyder dissent, this “absurd and atextual reading of the statute is one only today’s Court could love.”
At issue in Snyder is a federal statute we used frequently to prosecute corrupt government officials when I served as a federal prosecutor. Section 666 prohibits state and local officials from corruptly soliciting, demanding or accepting anything of value “intending to be influenced or rewarded” in connection with government business.
The case involved James Snyder, a former mayor of Portage, Indiana. Snyder was convicted of accepting a $13,000 payout from Great Lakes Peterbilt after steering the city to buy trash trucks from the company at a cost of $1.1 million. But because the payment came after he bought the trucks, the Supreme Court concluded Snyder did not violate Section 666 and overturned his conviction.
Writing for the majority, Justice Brett Kavanaugh concluded that while the statute prohibits bribes that are paid before the commission of a corrupt official act, it does not cover “gratuities,” which are paid afterwards. Among the reasons for its holding, the court noted that the statute would otherwise fail to provide fair notice as to whether conduct was criminal. “Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful?” Kavanaugh wrote. “What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end-of-term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner? Or to treat her to a Hoosiers game?”
The majority’s lamenting the criminalization of gifts to public officials, who, after all, receive a salary for their work, is a bad look. This is especially true given the recent ethics challenges plaguing some of the justices.
Jackson, joined in her dissent by Justices Sonia Sotomayor and Elena Kagan, forcefully pointed out the flaws in the court’s logic.
First, the language of the statute itself includes the word “reward.” What happened to textualism? Jackson blasted the majority for elevating “nonexistent federalism concerns over the plain text of this statute.” She also criticized the majority for taking the view that applying Section 666 to gratuities would give too much power to federal prosecutors for crimes that should be handled at the state level. “But woulds, coulds, and shoulds of this nature must be addressed across the street with Congress, not in the pages of the U. S. Reports.” In other words, she argued, the court is legislating from the bench by making policy instead of staying in its lane of interpreting the laws passed by Congress.
Second, Jackson noted that limiting language in Section 666 already provides fair notice of the statute’s reach, which negates the majority’s concerns about the “prosecution of the gift cards, burrito bowls, and steak dinners that derail [the] decision.” Suggesting that the majority’s real concern was its hostility to federal regulation over the states, Jackson defended the federal government’s duty to safeguard federal funds. One such limitation of the statute is that it only covers officials of entities that receive more than $10,000 per year from the federal government. Jackson noted that “when Congress has appropriated federal money, it does not have to sit by and accept the risk of operations thwarted by local and state improbity.” Suggesting that the majority’s real concern was its hostility to federal regulation over the states, Jackson defended the federal government’s duty to safeguard federal funds. Congress had every right to enact laws, she wrote, “to ensure the integrity of organizations participating in federal assistance programs.” The statute also only applies to conduct that is committed “corruptly.” The court, she wrote, has previously defined corruptly to mean “wrongful, immoral, depraved, or evil” conduct, requiring “consciousness of wrongdoing.” That language would require proof that an official not only acted wrongfully in accepting a gift, but that the official knew they were acting wrongfully. This wording should prevent the prosecution of an official who accepts a small gift as a token of appreciation, a far cry from the $13,000 reward Snyder received for delivering a $1.1 million contract. Jackson’s opinion states what should be obvious: “Officials who use their public positions for private gain threaten the integrity of our most important institutions. Greed makes governments — at every level — less responsive, less efficient, and less trustworthy from the perspective of the communities they serve.” The majority should take the hint.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
