More on the Meaning of Corruption: Clues and Opportunities in Snyder v. United States

Previous posts have discussed the substantial uncertainty around the meaning of “corruptly,” a mens rea term used across a variety of federal criminal statutes in the areas of public corruption, financial regulation, and obstruction of justice. A recent Supreme Court case, Snyder v. United States, 144 S. Ct. 1047 (2024), adds to the uncertainty. Even more than before, parties in corruption cases should plan for potential arguments that the “corruptly” mens rea term is unconstitutionally vague or susceptible to narrowing constructions.

The “corruptly” element ensures that only conduct properly considered unlawful falls within the reach of broadly drafted corruption statutes so that they do not ensnare acceptable behavior. See United States v. Robertson, 103 F.4th 1, 10–11 (D.C. Cir. 2023). But as covered in the previous posts, courts have struggled with how to interpret this important term. See Fischer v. United States, 144 S. Ct. 2176, 2201–02 (2024) (Barrett, J., dissenting) (the meaning of “corruptly” is “unsettled”). 

Some decisions have offered broad definitions that reference subjective and potentially malleable concepts, such as “wrongful, immoral, depraved, or evil.” Arthur Andersen LLP v. United States, 544 U.S. 696, 705 (2005) (observing that “corruptly” is “normally associated with” such concepts). Other opinions have suggested that “corruptly” connotes an intent of obtaining or providing an unlawful benefit. United States v. Robertson, 103 F.4th 1, 35 (D.C. Cir. 2023) (Henderson, J., dissenting). The D.C. Circuit held in a January 6 prosecution that the “corruptly” element was satisfied by showing that the defendant engaged in “independently unlawful” means to obstruct Congress’s election certification proceeding. Id. at 13, 15–16 (majority op.); see 18 U.S.C. § 1512(c)(2). But the D.C. Circuit also left open a less clear, partially circular definition: a defendant acts “corruptly” when he or she acts with a “corrupt purpose.” Robertson, 103 F.4th at 13, 17–18. And other opinions in January 6 cases have suggested that defining “corruptly” as “wrongful, immoral, depraved, or evil” offers only a “vague standard” that“ denote[s] little more than a jury’s subjective disapproval of the conduct at issue.” United States v. Fischer, 64 F.4th 329, 379–80 (D.C. Cir. 2024) (Katsas, J., dissenting) (“A wrongfulness standard thus would impose few limits on the government’s ability to charge, or a jury’s ability to convict, for conduct directed at an official proceeding.”), vacated and remanded on other grounds, 144 S. Ct. 2176 (2024). 

Enter Snyder. Snyder involved a prosecution under 18 U.S.C. § 666(a)(1)(B), which makes it unlawful for state, local, or tribal government officials to “corruptly” solicit, demand, or accept anything of value with the intent to be “influenced or rewarded” in connection with government business. The statute covers bribes—things of value offered in advance of a desired official act. But by a 6-3 vote, the Supreme Court held that the statute does not extend to gratuities—things of value given after an official act (i.e., in appreciation for the act). Snyder, 144 S. Ct. at 1951. 

The Court was concerned about “fair notice,” namely that to interpret § 666(a)(1)(B) to extend to gratuities “would create traps for unwary local officials” by subjecting them to a potential ten-year federal sentence for accepting even small gratuities—such as “a $100 gift card”—that are permissible under state law. Id. at 1957. The government sought to allay this concern by pointing to the “corruptly” mens rea element as a “major limiting feature” of the statute’s scope. Br. for United States at 38, Snyder v. United States, No. 23-108. In so doing, the government drew on Arthur Andersen to take the position that “corruptly” means “wrongful” or denotes “consciousness of wrongdoing.” Id. at 39. At oral argument, the government elaborated that “immoral” or “inherently wrongful” conduct would suffice as “corrupt.” Tr. of Oral Arg. at 50, 52, Snyder v. United States, No. 23-108. But to the Court, this interpretation offered “no guidance at all” and “no clear . . . rules,” at least in the context of public sector gratuities: 

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?

Snyder, 144 S. Ct. at 1957.¹ 

This reasoning might support an argument that under the government’s definition, the “corruptly” mens rea standard is unconstitutionally vague, at least as applied to certain situations. How can a mens rea standard that offers “no guidance at all” comply with the Due Process Clause’s requirement that a criminal law must “give to ordinary people fair notice of the conduct it punishes” and must set forth clear standards so as not to “invite[] arbitrary enforcement”? Johnson v. United States, 576 U.S. 591, 595 (2015). To adapt a hypothetical from a previous post, perhaps a community activist seeks a way to steer more investment capital to an underserved area where a history of discrimination has made it difficult for businesses to obtain loans. The activist tries to influence a bank officer to make low-interest loans to businesses in the underserved area. The activist hopes the loans can be expedited to overcome economic harm inflicted by a recent hurricane, but the bank officer says she must conduct time-consuming due diligence on the loan recipients. To convince the officer to bypass standard diligence procedures despite concerns about risks to the bank, the activist promises that the officer’s (or the bank’s) name will be blazoned on a community center in appreciation—a potentially valuable form of advertising and goodwill generation for the bank. By whose moral lights is the activist to assess whether his incentivizing of corner cutting in support of a good cause is “inherently wrongful” or “immoral” such that it falls within the prohibition on “corruptly” offering gifts in order to influence the business of a financial institution? See 18 U.S.C. § 215(a)(1). 

Or, to alter an example Justice Kagan offered at oral argument in Snyder, imagine a billionaire gives to a hospital a substantial donation that will fund a new wing providing a needed expansion of healthcare services for the community. See Tr. of Oral Arg. at 55–58. Snyder, No. 23-108. The hospital also agrees as a condition of the gift that the billionaire and his family will receive priority scheduling for appointments and surgeries, causing some patients to experience inconvenient wait times. Assuming the hospital receives federal grants and therefore is subject to 18 U.S.C. § 666(a)(1)(B), (a)(2), is the hospital’s acceptance of the gift “immoral” and therefore corrupt? The answer likely depends on who you ask. As an alternative to a vagueness argument, the activist or the hospital could argue that there is at least substantial doubt about whether the conduct is corrupt, and thus the rule of lenity should cause the court to conclude that it is not. See Snyder, 144 S. Ct. at 1960 (Gorsuch, J., concurring).

Writing in dissent in Snyder, Justice Jackson was more confident in the “corruptly” element’s ability to narrow the reach of § 666(a)(1)(B). According to Justice Jackson, defining “corruptly” to require consciousness of wrongdoing “heave[s] an imposing burden onto the Government”: “Prosecutors must prove not only that a state, local, or tribal official did, in fact, act wrongfully when accepting the gift or payment, but also that she knew that accepting the gift or payment was wrongful.” Id. at 1969 (Jackson, J., dissenting). The dissent had no trouble concluding that the Snyder defendant—a mayor alleged to have steered city contracts to a company from which he later received thousands of dollars in consulting fees for work he allegedly never performed—acted with consciousness of wrongdoing. Id. at 1967–69. But if Justice Jackson’s gloss on the “wrongful” definition of corruptly is correct, defendants can again rely on the subjectivity of the wrongfulness standard to argue that they did not believe what they were doing was wrong, and therefore did not act corruptly. Perhaps, for example, the activist and hospital above believed they were engaging in a win-win transaction that gave credit for a benefit to the community, not any immoral quid pro quo. In this way, as Justice Jackson suggested, “any lack of clarity” in the definition of “corruptly” may work to the “benefit” of the defendant. Id. at 1969.

Notably, the majority opinion criticized the government’s equation of “corruptly” and “wrongfully” as providing too vague a standard but did not suggest that the government’s reading was the correct one. Instead, it hinted at a more concrete definition: a transaction is undertaken corruptly if it means that the government official takes the action in question “for private gain,” and not, as the official is supposed to act, “for the public good.” Id. at 1952 (majority op.). Thus, the Court zeroed in on bribery as the paradigmatic corrupt act. See id. at 1953, 1955. “[B]ribery can corrupt the official act” by injecting private considerations into what is supposed to be a decision motivated by the public interest. See id. at 1953, 1959 (“The term ‘corruptly’ . . . signals that § 666 is a bribery statute.”). Interestingly, this potential definition echoes in some ways a narrower definition advanced by defendants and some judges in the January 6 context, but ultimately rejected by the D.C. Circuit:  a defendant acts corruptly only if the defendant acts “with the intent of obtaining an unlawful benefit for himself or another.” Robertson, 103 F.4th at 35 (Henderson, J., dissenting).

Any movement in the courts toward adoption of this definition might give defendants opportunities to argue that the charged transaction is not akin to traditional quid-pro-quo bribery that distorts a public service, and therefore was not undertaken corruptly. For instance, a definition that emphasizes the subversion of public good to private gain might not map neatly onto corruption statutes that do not involve acts that are supposed to be carried out for the public good, such as the financial institution business covered by § 215(a). Even in the public corruption context (or, in the private sector context, substituting, for example, the financial institution’s shareholders for the public), a bribery-based definition might be of use to defendants. For instance, in Snyder, though not in the context of a direct discussion of the meaning of “corruptly,” the Court adopted the premise that while bribes can distort an official act by causing it to be taken for private gain rather than the public good, after-the-fact gratuities cannot, apparently because the official act has already taken place before the payment of the gratuity. 144 S. Ct. at 1952. Though Snyder held that § 666(a)(1)(B) does not criminalize gratuities for state, local, and tribal officials, corruption statutes applicable to other contexts may still cover gratuities after Snyder. Thus, Justice Jackson’s dissent noted that the legislative history of § 215(a) suggests Congress intended it to cover gratuities awarded to bank officials. Id. at 1965–66 (Jackson, J., dissenting). A bank official charged for accepting an after-the-fact payment under this statute could rely on the Snyder majority’s reasoning to argue that the payment could not have been accepted “corruptly,” because it came after the bank decision at issue and the decision therefore could not have been improperly suffused with a desire for private gain. Accordingly, defendants may benefit from Snyder-based arguments that the subversion-of-public-interest definition, not the government’s more capacious wrongfulness definition, is the correct interpretation. 

One other lesson on the meaning of corruptly emerges from Snyder. As discussed in a previous post, the Department of Justice has, in a past version of its discontinued Criminal Resource Manual, suggested that “corruptly” might equate to “specific intent.” The government’s adoption of the “wrongful” interpretation in Snyder suggests that the Department has moved away from any position that “corruptly” simply means “specific intent.” And by recognizing that both § 666(a)(1)(B) and the bribery statute applicable to federal officials, 18 U.S.C. § 201(b), require both “the corrupt state of mind and the intent to be influenced in the official act,” Snyder confirms that a “specific intent” interpretation is not viable. Id. at 1955 (majority op.) (emphasis added). 

¹ The Court did not expressly tie the government’s “wrongful” argument to the “corruptly” element, but from the Court’s citations to portions of the government’s brief and the oral argument transcript, it is clear that this discussion pertained to the “corruptly” element.