The White Collar Appeal: DC Circuit Creates a New Standard for Bribery Prosecutions

• Last Friday, in United States v. Paitsel, the DC Circuit addressed the official-duty prong of the federal bribery statute, 18 U.S.C. § 201, holding that actions public officials would not be able to perform but for their official position fall within their “official duties.”
• In reaching that decision, the court held that the narrow definition of “official acts” that the Supreme Court delineated in McDonnell v. United States, 579 U.S. 550 (2016), has no relevance to the official-duty theory of bribery.
• Paitsel thus appears to be charting a new path for domestic bribery cases, free of the restrictions the Supreme Court set in McDonnell.  This has significant implications for corporate compliance programs, public officials, and anyone working at the intersection of private enterprise and government resources. 

Background

David Paitsel was a Special Agent with the FBI.  He had a friend who wanted to find nonpublic contact information for certain people and offered to pay Paitsel to search a restricted, nonpublic FBI database to obtain the information.  FBI agents were permitted to use the database only for law enforcement investigations, and, each time Paitsel logged on, he was required to affirm that his search had a statutorily authorized purpose.  Although using the database was not part of Paitsel’s job description or his normal day-to-day functions, Paitsel made approximately 30 searches for his friend, falsely affirming each time that he had a law enforcement purpose.  Over the course of few years, his friend paid him about $6500.  A jury convicted Paitsel of bribery under 18 U.S.C. § 201(b)(2)(C), which covers any “public official” who “corruptly … receives, accepts, or agrees to receive or accept anything of value … in return for … being induced to do or omit to do any act in violation of the official duty of such official.”

Holding

The DC Circuit affirmed the conviction in a 2-1 decision, holding that Paitsel’s database searches were within his “official duties” within the meaning of Section 201(b)(2)(C).  To reach that determination, the court had to define the scope of “official duty,” which the majority viewed as a statutory interpretation question of first impression.  After a lengthy discussion of the origins of Section 201 and state-law bribery statutes, the majority ultimately concluded that Paitsel’s conduct fell within his official duties because “he performed an act made possible only by both (i) his official position in the FBI that gave him access to a specialized FBI database, and (ii) his affirmative representation while using that database, as required by law, that his conduct was part of official FBI law enforcement investigative duties.”  In reaching that decision, the majority conceded that “Paitsel could not be convicted of an ‘official act’ offense for the alleged conduct in this case.”  But that didn’t matter to the majority, because “[t]his is not an official act case.”  As a result, the Supreme Court’s decision in McDonnell, which carefully narrowed the definition of “official acts” that could support a bribery conviction, was all but irrelevant under the majority’s analysis. 

By way of background, McDonnell dealt with the former Governor of Virginia Bob McDonnell and his wife, Maureen.  (One of the authors of this post was trial and appellate counsel to Mrs. McDonnell.)  Among the defenses the McDonnells argued was that nothing the Governor did for the alleged bribe payer constituted an “official act,” such that even if he received some quid, he never provided any quo that could support a bribery charge.  The Supreme Court agreed in a unanimous decision.  It held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’  The ‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.”

Back to Paitsel.  The dissent strongly criticized the majority’s dispositive distinction between official-duty and official-acts prosecutions and its relegation of McDonnell to the latter category.  Quoting McDonnell and other Supreme Court decisions that appear to require an agreement involving “official acts,” the dissent concluded that an “‘official duty’ consists of performing ‘official acts.’”  And because there was no dispute that Paitsel’s conduct did not qualify as “official acts,” it followed necessarily that he could not have violated an ”official duty.”

Key Takeaways

It’s a brand-new day for bribery prosecutions.  Paitsel effectively creates a workaround for the limitations imposed by the Supreme Court in McDonnell.  Now, instead of having to identify particular conduct that meets McDonnell’s  “bounded interpretation of ‘official act,’” prosecutors simply can identify some action that a public official could not perform but for his or her official position.  Although the Paitsel majority identified two factors—both the but-for element and Paitsel’s affirmation that he was using the database for official purposes—the second factor appears to carry little weight.  A false affirmation certainly may be probative of corrupt intent (the mens rea these bribery statutes require), but it would be peculiar to define the scope of a statutory term with reference to a particular type of evidence used to prove it.  It seems likely that future courts will deem this second factor satisfied so long as the defendant knew the conduct satisfied the but-for prong, regardless of the way it is proven.  The upshot is that the prosecutors have a powerful new tool to investigate and prosecute domestic bribery.

Corporate compliance programs should redouble their efforts to police employees’ interactions with public officials.  Paitsel places a new emphasis on the importance of robust compliance protocols for companies that interact with federal employees.  In-house counsel and compliance officers should immediately review and update their programs to reflect this expanded definition of bribery.  Most importantly, companies should review and reassess their policies governing employee communications with public officials.  Because nearly any request of a public official that involves conduct in their official capacity may support an official-duty bribery theory, companies must exercise great caution in what they ask of public officials.  This is especially true for anyone engaged in lobbying, government relations, or any other activity that involves seeking to influence government decision-making.  Companies should consider whether there are systems and processes they can implement that will (1) ensure adequate legal review prior to employees' communications with public officials, and (2) document or otherwise create a record of the content of the discussions with officials.  Companies may also want to tighten policies regarding gifts and entertainment.  Because Paitsel expands the universe of potential quo, previously innocent quid unconnected to official acts may now be fodder for investigators and prosecutors to build official-duty cases.  And at a minimum, compliance professionals must ensure that any employees who interact with federal officials receive updated training on the definition of “official duty” so that they understand the new risks they now face.

Public officials should beware too.  By the same token, public officials must be vigilant in their interactions with constituents, donors, and even common acquaintances.  McDonnell discussed at length the danger of bribery laws that sweep too broadly:

[T]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.  The Government's position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame.  Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. 

Paitsel’s broad definition of official duty would seem to implicate precisely these concerns.

Defendants should look for ways to limit Paitsel.  As noted above, the majority’s decision in Paitsel relied on the defendant’s false affirmation that he was accessing the database for official purposes.  Defense counsel thus should seek to limit Paitsel to the presumably uncommon scenario where a defendant explicitly and falsely represents that he or she is acting for official purposes.