3

There is lately some suggestion that a US president who withholds aid to a foreign country on the condition that the foreign country investigate a political opponent constitutes bribery. The definitions I've found of that offense all involve a "thing of value."

It is clear how such an investigation could be valuable to a US president, for the investigation would damage the reputation of the president's political opponents, probably making it easier for the president (or the president's political allies) to win the next election. But I am asking here on Law because curious:

Is there precedent for such an intangible act to serve as a "thing of value" in a bribery prosecution (or impeachment)?

For the purpose of this question, I am not particularly interested in promises of employment, since employment implies a salary. It seems like the distinguishing characteristic is that the thing of value is an act that only indirectly benefits the person seeking the performance of the act. Suggestions about other distinguishing elements are welcome.

The question principally concerns US federal law, but because the delegates to the constitutional convention would have understood bribery as a common-law offense, it would also be helpful to know about common-law precedent from before 1789, which may have influenced their understanding of the word bribery.

  • Are you basically asking if a bribe can include non tangible things? – Putvi Nov 15 '19 at 18:29
  • @Putvi I think it's more than just anything nontangible. For example, a promise of employment isn't exactly tangible. It could be argued that the tangible benefit of a salary is conditioned on performance of some work, so is not part of the bribe itself. If you want to make a case that I'm wrong to exclude promises of employment, I'll reconsider. Perhaps what I'm really interested in is where the line is drawn in defining the value of intangible things. – phoog Nov 15 '19 at 18:40
  • Your eyes are the eyes of the beholder so to speak here, so it's up to you, but just personally, I would call employment a tangible since you are compensated for it. The part about defining the value of intangible things is probably easier to explain in concrete terms. – Putvi Nov 15 '19 at 18:44
3

The Federal Election Commission (FEC) recently put out a summary of what constitutes a thing of value. While it is a summary from the FEC, I still think it's relevant because it uses the term thing of value, which, as the summary notes, appears in (quoting from the summary) "many criminal statutes throughout the United States". Because of that, I will quote the summary here, minus the footnotes.

THE LAW OF A ‘THING OF VALUE’

A Summary of the Sorts of Tangible and Intangible Goods and Services that have been Found to have ‘Value’ by the Commission and Other U.S. Government Entities

October 2019

What is a “thing of value” under the law? The Federal Election Campaign Act (the “Act”) defines a contribution to include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” “Anything of value” includes all “in-kind contributions,” defined as “the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.”

Goods or services provided at the usual and normal charge may not constitute a contribution under the Act. Commission regulations permit any person or company to provide goods or services to a political committee, without making a contribution, if that person or company does so as a “commercial vendor,” i.e., in the ordinary course of business, and at the usual and normal charge.

The legal concept of a “thing of value” is not unique to the Act. The words “thing of value” “are found in so many criminal statutes throughout the United States that they have in a sense become words of art,” wrote the U.S. Court of Appeals for the Second Circuit. “The word ‘thing’ notwithstanding, the phrase is generally construed to cover intangibles as well as tangibles.” Federal courts have consistently applied an expansive reading to the term “thing of value” in a variety of statutory contexts to include goods and services that have tangible, intangible, or even merely perceived benefits, for example: promises, information, testimony, conjugal visits, and commercially worthless stock.

The word “anything” means “all things.” “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind,’” according to the Supreme Court. As the U.S. Court of Appeals for the Eleventh Circuit explained, “The United States Supreme Court and this Court have recognized on many occasions that the word ‘any’ is a powerful and broad word, and that it does not mean ‘some’ or ‘all but a few,’ but instead means ‘all.’”

The summary goes on to provide a list of examples:

The Commission has held a long and diverse list of goods and services (both tangible and intangible, both easy and difficult to value) to qualify as contributions, including:

  • opposition research;
  • an activist’s contact list;
  • an email list;
  • staff time;
  • a business name or logo;
  • a severance payment;
  • the production elements for an event;
  • election materials;
  • a rent-stabilized apartment;
  • office space;
  • a boat;
  • stocks and commodities;
  • barter credit units and cryptocurrency mining awards;
  • a gold coin;
  • poll results; and
  • more generally, securities, facilities, equipment, supplies, personnel, advertising services, membership lists, mailing lists.

Thus, the Commission has, consistent with judicial rulings, interpreted “anything of value” broadly under the Act. The Commission has found that even where the value of a good or service “may be nominal or difficult to ascertain,” such good or service is nevertheless a “thing of value” under the Act.

|improve this answer|||||
2

If I were you, I would look at Skilling v. United States. https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Start at page six of that PDF, where it reads:

  1. Section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” is properly confined to cover only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within the Court’s confinement of §1346’s proscription. Pp. 34–51.

Generally in criminal prosecutions, intangible things taken in bribery schemes are referred to as "honest services". That standard was not around in the 1700s.

Most often these cases involved bribery of public officials, but over time, the courts increasingly recognized that the doctrine applied to a private employee who breached his allegiance to his employer, often by accepting bribes or kickbacks. By 1982, all Courts of Appeals had embraced the honest-services theory of fraud. https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Several cases regarding the formation of the "honest services doctrine" are included in the Skilling opinion. It began with SHUSHAN et al. v. UNITED STATES.. The courts, in McNally v. U.S., held that the law used in the Shushan case only applied to mail fraud and said congress must act if it wants all intangibles to be viewed the same way, under an "honest services doctrine". That led to congress passing U.S. Code § 1346, the law currently used in "honest goods" cases.

In the Skilling case the Supreme Court said:

(5) Interpreted to encompass only bribery and kickback schemes, §1346 is not unconstitutionally vague. A prohibition on fraudulently depriving another of one’s honest services by accepting bribes or kickbacks presents neither a fair-notice nor an arbitraryprosecution problem.

You can't get much clearer on what law should cover bribery in relation to intangibles. However, it does not define investigations specifically, but is intended to cover all intangibles in bribery schemes to allow prosecution in all cases. If the law only covered certain intangibles there could be problems with it being "unconstitutionally vague", in the court's words.

|improve this answer|||||
  • Does this answer the question? It sounds like you’re saying that it’s fraud to withhold intangibles in exchange for a bribe, but nothing about whether or not a bribe can be composed of intangibles? – nick012000 Nov 16 '19 at 5:41
  • @nick012000, every case that laid the foundation for intangibles being considered a bribe, in federal court anyway, is listed in there. – Putvi Nov 18 '19 at 18:33
  • Maybe you should quote relevant portions of the rulings in question, then? It looks like you were going on a bit of a tangent to me by quoting cases about being bribed into committing fraud? – nick012000 Nov 18 '19 at 21:09
  • Please read the part's about theft of honest services. That would be the legal term for it. – Putvi Nov 18 '19 at 21:12
  • What part are you referring to, specifically? I can see some stuff that seems to be saying that it’s fraud to deprive someone of intangibles in exchange for a bribe, but I can’t see anything that says that offering somebody of intangibles is itself a bribe, which is what this question is about. – nick012000 Nov 18 '19 at 21:18

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.