Does paying a holder of public office to resign constitute bribery?

Question

https://www.usatoday.com/story/news/politics/2024/02/19/john-oliver-clarence-thomas-supreme-court/72662536007/

TV personality John Oliver has publicly offered to pay Justice Clarence Thomas to resign his seat on the U.S. Supreme Court.

Does paying a holder of public office to resign constitute bribery?

Answer 1

Proabably NO

18 USC § 201 deals with bribery of public officials

(b) Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—
(A) to influence any official act; or
(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;

A would be the probable trigger here

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Are considered public officials

(a) For the purpose of this section—
(1) the term “public official” means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;

A Supreme Court Justice is a public official for the purpose of the section

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An official act is defined as such

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

In McDonnell v. United States, the Supreme Court opined that (emphasis mine) :

[A]n “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. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official

Since resigning is not 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, it is not an official act

Answer 2

No.

Both accepting a public servant position and resignation are wholly personal choices. Assuming there is no minimum tenure imposed, the person can't be audited and held to account as to how and why those choices were made. It's simply none of anyone's business.

Though it is true that by making such choices other people are affected, this is inherent to any role, public or in private business. The remedy deemed sufficient is notice period, which balances the personal freedom to make choices and responsibility for people around.

Answer 3

EDIT: I've completely re-written this answer due to some confusion in the comments as to what my argument was, and also to include some counter-arguments.

united-kingdomengland-and-walesnorthern-irelandscotland

If we are talking about a straightforward transaction in which a public office holder is paid to resign, and they resign only because of the payment, then this would arguably amount to bribery under the Bribery Act 2010.

Short answer (TLDR)

It is bribery if the act of resigning is "an activity performed in the course of a person's employment" and a reasonable person in the UK would expect a public office holder to make a resignation decision in good faith and a resignation decision by a public office holder made purely for payment would not be a decision made in good faith and the person making the payment intended the public officer holder to resign in return. Otherwise, it is not bribery.

Long answer

The Act is concerned (among other things) with "relevant functions or activities" which are performed "improperly" as a result of payment from another person.

To establish bribery we need to carry out the following tests:

1. Is the act of resigning either a relevant "function" or a relevant "activity"?
2. If yes, is the act of resigning in return for payment "improper"?
3. If yes, did the person in fact offer or give money to the public office holder to induce them to resign?
4. If yes, it was bribery.

Is the act of resigning either a relevant "function" or a relevant "activity"?

This is defined in Section 3 to include (among other things):

• Any activity performed in the course of a person's employment where the person performing the activity is expected to perform it in good faith.

The word "expected" above has a specific meaning which is defined in Section 5. It means:

what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.

So, we can modify the above definition of relevant activity as follows:

• Any activity performed in the course of a person's employment where a reasonable person in the UK would expect the person performing the activity to perform it in good faith.

My argument rests on two theories: (a) that the act of resigning is "an activity performed in the course of a person's employment" (being the final such act), and (b) that a reasonable person in the UK would expect a public office holder to act in good faith when resigning. If either of these two theories don't hold, then this stage of the test fails and there is no bribery.

If yes, is the act of resigning in return for payment "improper"?

The word "improper" here doesn't carry its ordinary dictionary meaning. It doesn't mean that the resignation has to be in breach of some law or other requirement. Instead, it is given a specific definition in Section 4 (emphasis mine):

A relevant function or activity is performed improperly if it is performed in breach of a relevant expectation.

If we re-write the above clause to insert the full meanings of all the defined words (combining Section 4(2) with Sections 3 and 5 and paraphrasing slightly to make the grammar work), we get:

An activity performed in the course of a person's employment is performed improperly if it is performed in breach of an expectation by a reasonable person in the UK that the person performing the function or activity perform it in good faith.

To pass this stage of the test I am arguing that a decision by a public office holder to resign solely in exchange for payment is not a decision carried out in good faith.

If yes, did the person in fact offer or give money to the public office holder to induce them to resign?

This stage of the test comes from Section 1 which provides:

A person (“P”) is guilty of an offence [if] (a) P offers, promises or gives a financial or other advantage to another person, and (b) P intends the advantage — (i) to induce a person to perform improperly a relevant function or activity, or (ii) to reward a person for the improper performance of such a function or activity.

To be bribery, we have to prove that P had the relevant intent. A payment alone isn't sufficient.

If instead of a straighforward payment in return for resignation, a person offers a public office holder a genuine new job offer which includes an up-front payment, and they accept that job in good faith, then it wouldn't be a bribe.

Conclusions and case law

It seems fairly apparent to me that the OP's scenario would satisfy the "relevant activity" and "expectation of good faith" tests. More borderline in my view is whether a resignation for payment would fail the "good faith" test. I think an argument can be made either way here but that there's at least a reasonable argument that a public officer accepting money in exchange for resigning constitutes interference in politics or government work and that it doesn't constitute resigning in good faith.

There is very little case law under the Bribery Act 2010, and none addresses the good faith test. The phrase "good faith" has been examined in other areas of law. In the context of consumer law, it was described in as Director General of Fair Trading v First National Bank Plc [2002] 1 A.C. 481[17] as "look[ing] to good standards of commercial morality and practice". Socimer International Bank Ltd (in liquidation) v Standard Bank London Ltd [2008] Bus. L.R. 1304 [116] describes it as "abuse caused by self-interest" in the context of contract law.

Ultimately, this would be a question for the Courts to decide in respect of an alleged bribe.