Business Politics

Legal Commentary and Analysis by Kendall Coffey

PUBLIC CORRUPTION: From Setbacks to Federal Step-ups

By Kendall Coffey

When local political figures are in the federal bull’s eye, the specter of public corruption casts a long shadow over a community’s political and business leadership. The flipside, though, of bad times for politicians is good news for federal law enforcement as it has combined enhanced resources with strengthening federal laws to achieve a striking series of successes. While many communities are witnessing arrests at City Hall, nationally, the names include present and former Congressional figures such as Robert Ney and William Jefferson. Collectively, these developments signal the arrival of a resurgence in combating corruption that has been years in the making and is national in scope.

While public corruption is anything but a victimless crime, it presents unique challenges to prosecutors and the police because the victims of outstretched politician’s palms are rarely willing to step forward against powerful public officials. Thus, the Department of Justice has long recognized that undercover operations are “especially effective in public corruption investigations.”

In the late 1970’s, the Federal Bureau of Investigation used a fake Arab Sheikh to entice various members of Congress into agreeing to accept bribes, mostly on video tape. Despite the spectacular success of the “ABSCAM” investigation, which by 1981 had netted convictions from six members of the House of Representatives and one U.S. Senator, it yielded little applause from Congress. Instead, Congressional committees criticized the FBI’s tactics, finding that the “use of undercover technique creates serious risks to citizens’ property, privacy, and civil liberties…” Responding to such concerns, the Attorney General imposed a broad array of pre-conditions limiting future attempts to use a “sting” operation to “set up” a public official.

As a result, many prosecutors and agents were feeling more chilled than thrilled with the reaction of Congress and the Attorney General to ABSCAM. Later in the 1980’s, the courts dealt their own setbacks to corruption prosecutions by cutting back on two of the primary legal weapons used in federal indictments. Traditionally, federal authorities employ mail fraud laws by successfully arguing that schemes encompassing corrupt politicians effected a theft of the public’s right to “the honest services” of a public officer. In 1987, though, the Supreme Court erased this tool, finding that the mail fraud statute did not expressly include “theft of honest services” among the acts that constituted crimes. With one traditional tool being judicially vaporized, another was downsized as the Supreme Court found in 1991 that bribery could not be prosecuted under the Hobbs Act, a criminal statute frequently utilized against corruption, unless the scenario included an “explicit quid pro quo.” Because corruption does not always include the specific details of a bribery scheme, the result of this increased requirement for more proof was that many public dealings would not be provably criminal even if they were ethically abysmal.

Shifting Priorities

With many federal corruption cases reeling in the face of Supreme Court setbacks, the 1990’s also saw a major shift of federal resources to combat violent crime. Public outcry about street violence intensified through the mid-1990’s as many state systems were recycling street criminals through a revolving door of punishment-light plea deals. In response, federal authorities, including the FBI, launched successful but resource-intensive operations to take violent offenders off the streets by charging them with federal crimes that led to much longer sentences in prison.

Politicians in the Bull’s Eye

In 2001, the shattering atrocities of 9/11 transformed federal investigative priorities even more, dramatically catapulting terrorism ahead of all other criminal priorities. Even as the Department of Justice was moving rapidly to assign top prosecutors and agents to join the legal war against terrorists, a different kind of devastation engulfed Wall Street as the Enron era began to sink the confidence of the investing public. In response, significant federal resources were allocated to staff new task forces so that complex accounting fraud cases could be investigated and prosecuted with unprecedented intensity and velocity. Inevitably, because public corruption investigations are typically headed by the Federal Bureau of Investigation, these deployments affected the availability of federal resources during the early years of this decade.

In the last few years, however, with the addition of new hires and the winding down of Enron-era prosecutions, corrupt politicians have returned to the top of the FBI’s most wanted targets. More than 600 agents, roughly fifteen percent of its investigators, are committed to the battle against corruption, resulting in a sixty percent increase in corruption investigations since 2001. Meanwhile, the once-interred crime of theft of honest services has re-emerged as a leading weapon in the battle against corruption. After its Supreme Court erasure in 1987, ‘theft of honest services’ was restored by an act of Congress in 1989. Following more than a decade of largely favorable treatment by the courts, this increasingly favored prosecution tool does not require proof of an ‘explicit quid pro quo.’ Instead, proof of a corrupt relationship with a public official can establish criminality even without demonstrating that a bribe was given in return for a specific public act.

Thus, with the FBI establishing public corruption as a top priority, and with prosecutors armed with more flexible legal tools, last year, a nation-wide wave of federal corruption cases reached from the Halls of Congress to more than five hundred state and local officials. Meanwhile, influence peddlers like super-lobbyist Jack Abramoff pled guilty to charges including ‘theft of honest services’ that could generate still more leads concerning other suspects.

The Corruption Challenge

While the obvious consequences of a bribery scheme may center on direct financial benefits to office holders that seem relatively modest, the hidden costs of corruption are far greater. The often invisible harm includes the increased costs and decreased quality that taxpayers receive when kickbacks control who gets his way with contracts, zoning or key government services. In extreme cases, communities face the risk that some may take their business to other communities in order to avoid a muddy, slanted playing field that penalizes honest companies.

Although public corruption damages an entire community, in contrast to other crime problems, victims of bribery schemes rarely step forward due to concern about political reprisals. And so it falls upon concerned citizens and business leaders to advocate for action against public crooks. The challenges begin at the ballot box by voting for leaders who emphasize integrity and demand tougher anti-corruption laws. It is also important to create stronger tools for prosecutors broadening criminal laws against improper conduct, and to impose stricter controls on politicians, tightening financial disclosure and conflict of interest rules. Along with stronger laws, a concerned community needs to ensure that prosecutors, police and agents have the human and logistical resources they need to succeed because corruption cases are among the most difficult and time-consuming challenges for law enforcement. Also significant can be the role of journalists in battling corruption. Because many people will talk more readily in off-the-record phone calls to reporters than in an FBI debriefing, the media will continue, at times, to be a first responder to leads about sleaze. When media add their voices to the words of citizen leaders demanding stronger action against corruption, law enforcement usually listens even while it is not commenting. In all events, the key to overcoming any concerns about a culture of corruption is to develop a culture of reform that is dedicated and enduring.

View the entire published article by Kendall Coffey at

About the Author

Kendall Coffey is a former U.S. Attorney for the Southern District of Florida. Today, Kendall Coffey is a founding member of Coffey Burlington, a law firm with a concentration in litigation at trial and appellate levels, in federal and state courts.Kendall Coffey also provides commentary and legal analysis for high profile court cases.

Kendall Coffey has participated in many high profile court cases, including Miami’s historic voter fraud trial in the 2000 Presidential recount litigation, as well as the Elian Gonzalez trial. Kendal Coffey has also been a guest legal analyst on CNBC, CNN, FOX, and MSNBC.

Kendall Coffey comments on the Elian Gonzalez case in Florida in the year 2000.

Kendall Coffey’s representation of Al Gore in the 2000 Presidential Election Florida recount.