TIL that there's a distinction between bribes and gratuities. A bribe is something given before the fact: Here's $13,000 if you'll buy our garbage trucks. A gratuity happens after the fact: Thanks for buying our garbage trucks! Here's $13,000.
I didn't choose that example lightly. It's the background in Snyder v. United States, a case decided today by the Supreme Court. The conservative majority ruled that since a garbage truck payoff had been made after the fact, it didn't constitute corruption under federal law.
Maybe so. As they say, the law is an ass. But the Court's reasoning doesn't fill me with confidence. Brett Kavanaugh argued that federal law was too vague about what exactly was allowed and what was prohibited:
“Could students take their college professor out to Chipotle for an end-of-term celebration?” he wrote. “And if so, would it somehow become criminal to take the professor for a steak dinner? Or to treat her to a Hoosiers game?”
While “American law generally treats bribes as inherently corrupt and unlawful,” Justice Kavanaugh wrote, gratuities are another matter. Some can be “problematic,” while others can be “commonplace and might be innocuous.”
He listed examples. A family tipping their mail carrier. Parents sending a gift basket to thank their child’s teacher at the end of the school year. A college dean giving a sweatshirt to a city council member who speaks at an event.
Hmmm. Let's review:
- Steak at Chipotle.
- A couple of sawbucks to your mail carrier.
- A gift basket.
- A sweatshirt.
- $13,000 in "consulting fees" to a mayor who bought garbage trucks worth $1.1 million.
One of these things is not like the other. Can you figure out which one?
Look, sometimes the law is weird and produces strange results. I get it. But surely the Court could draw some distinction about what's allowed that would be well north of sweatshirts and gift baskets. It's a matter of puzzlement to me that the Supreme Court's conservative wing keeps doing this, tightening the law over and over to make it all but impossible to convict politicians of corruption. Jokes aside, this isn't some partisan thing, after all. Republicans and Democrats both engage in plenty of corruption. So why are conservatives so eager to dismiss it?
EAIAC. Every Accusation Is A Confession. Now ERIAC. Every Ruling Is A Confession. I’m guessing lots of elected Republicans and the judges they select are on the take nationwide.
So odd--nobody has ever tried to give me $13,000 as a friendly token. The only times I've ever received funds on that scale was in exchange for services provided.
I guess innocent $13,000 gifts are just more common in the circles Kavanaugh travels in (i.e., people with extensive decisionmaking power in positions of governmental authority) than in mine (i.e., regular working schmoes).
I wonder why that is.
Shit, look into what Kavanaugh, Alito, and Thomas have taken. $13k is chump change.
And to add to Austin: Wilhoit's Law also seems to apply here, in that whoever is part of the existing structure is to that extent a conservative, and sheltering even them protects the true conservatives along with them.
Concur. This is about limiting accountability. Keep things quiet, between friends, unavailable to the public, and if exposed invulnerable to legal challenge. Just like the plutocracy wants it.
Conservatives favor hierarchy, liberals favor equality. Legalized corruption favors those with fat pockets, and is therefore pro-hierarchy.
Yes, that's it in a nutshell. Conservatives want rule by the wealthy, and the wealthy are the ones who can pay bribes.
The law, in its majestic equality, allows rich and poor alike to bribe public officials.
But the difference is that the rich can afford it, which explains why Republicans are OK with it.
...I think everyone else in the room already got the joke? I'm not sure that explanation was necessary.
A bigger difference:
The mayor didn't buy the garbage trucks. He directed public money to the seller.
That is completely different in context, as well as scale, from the other examples, where an individual was "tipping" a vendor or serviceworker with their own money. Maybe the sweatshirt fits something close to that description, but there the scale difference is obvious and the dean isn't using public money (unless it's a public college, I suppose).
Not to mention, this seems to leave the most gaping hole in the law possible. If you're the mayor, you just tell the vendor you'll accept the bribe after the deal is done and not before. And maybe make sure to write "tip" on the envelope instead of "bribe"? sheesh
"'Could students take their college professor out to Chipotle for an end-of-term celebration?' he wrote. 'And if so, would it somehow become criminal to take the professor for a steak dinner? Or to treat her to a Hoosiers game?'"
Kavanaugh has a point here! Who among us hasn't surprised a teacher with a fast-casual burrito, or picked up the check for a friend's steak dinner, or casually treated a pal to paying off $100k in debt?
The answer is of course none of us; should this be illegal, then anytime somebody offers a simple gratuity like making a SCOTUS nominee's extensive financial problems disappear, why, there could a sense among the public that something is amiss!
My engineering society class rep gave professors six packs before midterms with class money. And yes, we were hoping for more lenient marking.
this ruling is meant to protect clarence thomas
Yep. And the whole back-scratching aparatus. You need a mechanism to teach the justices which side their bread is buttered on. You stay our friends, we keep buying you campers and sending you via yacht to Bali. You fall afoul of us and the music stops.
"...If you're the mayor, you just tell the vendor you'll accept the bribe after the deal is done and not before. .."
IANAL but if there is an explicit agreement before hand then I think it would still be a bribe. Also there is a risk you won't get paid.
BTW many (although not this one) of the Supreme Court decisions throwing out corruption convictions have been unanimous. See for example McDonnell v, United Stares .
"if there is an explicit agreement before hand then I think it would still be a bribe. Also there is a risk you won't get paid."
Indeed! It's only bribe if the terms are in a UCC-compliant notarized agreement with a unification clause, written of course if the amounts in question exceed the statute of frauds minimum value, executed with a meeting of minds and prior to the exchange of goods/services. Deals done by wink, handshake, or in the common course of (corrupt) business are, of course, unenforceable in a court of law, and so accordingly cannot be shady.
I don't think that is actually the law.
The hypothetical is you are doing your job with no expectation of any payment (aside from your salary) and after the fact you are given money. Is it a violation of the bribery statute to accept that money?
Presumably that depends on the text of the law.
The most telling thing about this is that no one decrying this decision has actually pointed to the text of the law. SCOTUS is not an after the fact super legislature rewriting laws to what they would have been if we had better, wiser legislators. It is supposed to interpret existing laws and in criminal law ambiguity is resolved in favor of the defendant.
If the decision is wrong explain why based on the law, not on your ideas of what the law should be.
The dissent points to text of the law.
From the dissent: Ignoring the plain text of §666—which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded”—the Court concludes that the statute does not criminalize gratuities at all. This is so, apparently, because “[s]tate and local governments often regulate the gifts that state and local officials may accept,” ante, at 1, which, according to the majority, means that §666 cannot. The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute...
Projecting ones own faults onto others.
Because MF (like the leaders he copy/pastes) has literally no interest in the text of the law, he projects this onto everyone else.
The first comment said 'Every accusation is a confession' and MF shows us that this is true.
" Also there is a risk you won't get paid." Not when there are future contracts at stack.
And the business' reputation with other government officials.
The very odd thing is that the Supreme Court doesn’t know that in many states, all of the suggested options are currently illegal for public employees to receive.
As an employee at a state university, I cannot accept gifts of more than $3 from anyone who has business with the university. Decades ago as a contractor in a firm that occasionally worked on federal jobs, I could not accept gifts more than $3.
Here again, always adjust for inflation. The $3 should be raised every year by the corresponding increase in Social Security payments. But first triple it to $9, to account for past inflation.
That way someone can buy you a Pepsi along with that burrito.
It's all about getting away with it, the supreme, aspirational value of the social conservative mind.
So is receiving multiple bars of gold, envelopes of cash and a Mercedes all for helping out a friend the sign of corruption or just being friendly?
Is getting a $267,000 of debt forgiven just a really, really, really nice gratuity?
That's a tough one Kevin. Let me see, what do authoritarians think about corruption...?
Correct. This isn't about a societal policy debate between those who want blue hats/climate legislation/legal abortion/etc. and those who want red hats/tax exemptions/a militarized border; it's a debate between those who want the rule of law and those who would rather not have the rule of law because it gets in the way of what they want to do.
While the carefully picked examples certainly fit within “I can’t define art but I know it when I see it.” where exactly would/should/could the court/Judiciary draw the line? An Earl Scheib $99.95? Higher? Lower?
Unpleasant as it may be, that does sound like the sort of thing which should be codified in law by the Legislative or in regulation by the Executive.
Sorry, but I disagree. SCOTUS is aware that their decisions serve as guidance for lower courts, so they don't like to use the duck test, no matter how clear-cut that may be. So here's a simple test: Is the amount sufficient to influence the decision in question? No professor is going to change a student's grade for a Chipotle dinner. Likewise, a gift basket or a sweatshirt aren't going to carry much weight. But $13000?
Everyone knows how this works. A wink and a nod, the contract is awarded, and an envelope of cash magically appears. If the recipient can show that the decision was not made based on an expected "gratuity" then that could be a defense, e.g. if the contract was awarded to the lowest bidder. But the burden of proof should be on the recipient to show that they weren't influenced by any expected payoff.
Agreed. This is why juries and the court process exist. There is no need for this level of specificity.
Why is that a mystery? There are 6 Republicans, and Republicans are just a little shy of Libertarians in thinking that oligarchies are the best form of government.
JFC, this is CORRUPTION, pure and simple. We're supposed to trust and view these judges as CREDIBLE decision-makers? Once they indicate the President is above the law, Biden must immediately throw Alito, Kavinaugh and Thomas in Guantanamo for taking bribes. Hold them there and immediately replace them with 3 new judges that actually believe in JUSTICE.
Gloves are off. If not now, when??? Do we wait until they are storming the Capitol again?
I think you are confusing Gorsuch and Kavanaugh. Kavanaugh is conservative true believer but his decisions are tethered to reality and an honest reading of the law. Gorsuch, not so much.
At least this one seems simple to fix, rewrite the law to make it crystal clear instead of "corruptly", patterned after the patchwork of lies we have nationwide that already limit/prohibit gifts of any kind over some nominal value to individuals working for the public.
This is not so simple. Very hard to write these laws with great specificity if someone is eager and willing to misread it. This very Supreme Court has overruled very direct language when they did not like the policy. The reasoning in the ruling might change, but the result will not be affected.
"transactional" is another word for "corrupt"
Poor old Jimmy Comer will be devastated. Here's he's spent months in his "impeachment inquiry" trying to prove Joe Biden was given lots of money in 2017 as a reward for favors he did for various countries as vice president, and his buddies on the Supreme Court blow the whole case out of the water by declaring there'd be nothing wrong with that anyway.
Reading the dissent is worth your time, if you like that sort of thing.
Mainly, Jackson argues that the real motivation of the majority is simply limiting the reach of the Federal govnment.
The facts are pretty brutal, seems really micky mouse small town mayoral graft, one wonders why no state prosecution.
That $13,000 is an interesting amount. It's 1.18% of the $1.1 million the city spent on the trucks. Weird figure for a commission or finder's fee, eh? However, depending on the year, $13,000 is at or very close to the IRS's maximum amount that any one person can give to any other person without tax consequences for either of them. Including that neither of them has to declare it, so no invoice, no W-2, none of that messy paperwork stuff.
It must be my overly suspicious nature, but I wonder if that might have been a factor in this sordid little deal. If it was, Kavanaugh seems to have missed the boat by calling it a "gratuity." As all wait staff know, tips are taxable income.
So maybe Kavanaugh didn't quite cotton on to the full picture how this little arrangement was supposed to work, and nobody tipped him off in time to do a global replace of "gratuity" with "gift"? Inquiring minds will want to know.
Year of Gift Annual Exclusion per Donee
2011 through 2012 $13,000
2013 through 2017 $14,000
2018 through 2021 $15,000
2022 $16,000
2023 $17,000
2024 $18,000
Per https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes
They think they are better at it than liberals?
In my opinion, you should read the new John Ganz book "When the Clock Broke: Con Men, Conspiracists, and How America Cracked Up in the Early 1990s," which is about how conservatism kind of lost his footing 30 years ago. He talks a lot about the mafia and militias as representations of anti-statist thinking. The liberals want to organize everything into a Social Democratic fabric. Lawlessness, graft, etc. become ways to assert your independence from that as well as your individuality.
Hey Kavanaugh, keep the name of my beloved Hoosiers out of your mouth!
It often seems these court rulings go south because congress failed to write clear laws. So then we have slimy lawyers sneaking their criminal clients through technical loopholes. No one ever accused a judge of having common sense. But hey, if they are going to make something illegal, our representatives in congress really ought to be specific.
I'm waiting for the court to invalidate all those obstruction charges for the criminals who attacked the capitol on 1/6/2021. Another technicality...
Damn, if only the relevant law had a clause that'd exclude stuff like a dinner, a gift basket, etc. Maybe something like a clause restricting bribery to "involving anything of value of $5,000 or more".
https://www.law.cornell.edu/uscode/text/18/666 (18 US Code 666.a.2)
Kavanaugh knew about that limit. It was referred to in cert. He knew the small gifts he conjures up would not trigger the law. He lied when he pretended otherwise...just as he lied under oath about his behavior in high school.
I'm not sure why Kevin is confused. The conservative justices simply want to establish using other people's conduct what they have been doing all along is legal.
The conservative project hinges on the premise of governmental dysfunction, and corruption is one of the most efficient ways to induce dysfunction.
I don't think that Kavanaugh necessarily wants to induce corruption, per se; it's more likely that his worldview is that everyone in power does corrupt-looking stuff all of the time as a function of their position, and it's only nitpicking assholes that hassle you over a mere $13000 kickback. The idea that that actually is corruption and that a lot of public servants don't do it probably never enters his mind.
> Republicans and Democrats both engage in plenty of corruption
And yet, somehow Republican corruption is a feature, not a bug, to Republican voters.