In today’s second decision, the Supreme Court ruled by a vote of 6 to 3 in Snyder v. United States that a federal law that makes it a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act prohibits acceptance of bribes that are promised or given before the official act but does not apply to acceptance of gratuities made in appreciation of the official act.
In his majority opinion for six justices, Justice Kavanaugh sets forth six reasons that “taken together” lead to his conclusion: “text, statutory history, statutory structure, statutory punishments, federalism, and fair notice.”
On text, Kavanaugh addresses the federal government’s (and the dissent’s) argument that the term “rewarded” covers gratuities:
In isolation, the word “rewarded” could be part of a gratuities statute or a bribery statute—either (i) a reward given after the act with no agreement beforehand (gratuity) or (ii) a reward given after the act pursuant to an agreement beforehand (bribe). But as noted above, the word “corruptly” in the text of §666 helps resolve the issue here. The bribery statute for federal officials, §201(b), uses the term “corruptly.” But the gratuities statute for federal officials, §201(c), does not. The term “corruptly” therefore signals that §666 is a bribery statute. And statutory history, statutory structure, statutory punishments, federalism, and fair notice strongly reinforce that textual signal and together establish that §666 is a bribery statute.
Contrary to the premise of the Government’s argument, moreover, bribery statutes sometimes use the term “reward.” See, e.g., 18 U. S. C. §600; 33 U. S. C. §447. The term “rewarded” closes off certain defenses that otherwise might be raised in bribery cases. Consider a bribe where the agreement was made before the act but the payment was made after the act. An official might try to defend against the bribery charge by saying that the payment was received only after the official act and therefore could not have “influenced” the act. By including the term “rewarded,” Congress made clear that the timing of the agreement is the key, not the timing of the payment, and thereby precluded such a potential defense.
And think about the official who took a bribe before the official act but asserts as a defense that he would have taken the same act anyway and therefore was not “influenced” by the payment. To shut the door on that potential defense to a §666 bribery charge, Congress sensibly added the term “rewarded.”
So even if “influenced” alone might have covered the waterfront of bribes, adding “rewarded” made good sense to avoid potential ambiguities, gaps, or loopholes. Congress commonly writes federal statutes, including bribery statutes, in such a belt and suspenders manner. Here, the term “rewarded” does not transform §666 into a gratuities statute.
Here’s Kavanaugh on fair notice:
The flaw in the Government’s approach—and it is a very serious real-world problem—is that the Government does not identify any remotely clear lines separating an innocuous or obviously benign gratuity from a criminal gratuity. The Government simply opines that state and local officials may not accept “wrongful” gratuities.
That is no guidance at all. Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful? 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 Government offers no clear federal rules for state and local officials. So how are state legislators, city council members, school board officials, building code inspectors, probation officers, human resource directors, police officers, librarians, snow plow drivers, court clerks, prison guards, high school basketball coaches, mayors, zoning board members, animal control officers, social workers, firefighters, city planners, and the entire army of 19 million state and local officials to know what is acceptable and what is criminalized by the Federal Government? They cannot. The Government’s so-called guidance would leave state and local officials entirely at sea to guess about what gifts they are allowed to accept under federal law, with the threat of up to 10 years in federal prison if they happen to guess wrong. That is not how federal criminal law works.
In a concurring opinion, Justice Gorsuch opines that the “ancient rule of lenity”—the principle that vague or unclear criminal laws should be construed to apply narrowly—“is what’s at work behind today’s decision…. Rightly so.”
In a long dissent (22 pages versus 16 pages for the majority opinion), Justice Jackson, joined by Justices Sotomayor and Kagan, snarkily contends that “Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.” She asserts that the majority “[i]gnores the plain text” of the statute, when it in fact explains at length (as in the excerpt above on text) why it believes that the text does not have the “plain” meaning that Jackson sees. And she argues that the statute “weaves together multiple other elements (that the government must prove beyond a reasonable doubt), which collectively do the nuanced work of sifting illegal gratuities from inoffensive ones.”