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Legal Gratuity or Illegal Bribe?  Fifth Circuit Limits Federal Prosecution of Local Texas Leaders

Texans may often ask how the FBI and DOJ attorneys can investigate and prosecute state and local officials when there is no obvious connection between the alleged wrongdoing and the federal government. The answer is tucked away in a section of the federal penal code called “Federal Programs Bribery.” It is curiously, if not ominously, is listed at Title 18, United States Code, Section “666.” It applies to any official working for any state or local government agency that directly or indirectly receives more than $10,000.00 in federal money in a given year, just about every state and local government agency. No one turns down “free money.”

Before August 23, 2022, it was not at all clear what “Federal Programs Bribery” covered in the Fifth Circuit (Texas, Louisiana, and Mississippi). If a public contractor or community activist donated to a political official’s charity or her spouse’s charity or gave the official money to help her care for her elderly mother, with the hope he or she might get a benefit someday or as a “thank you” and “well done” for something the official had done in the past – was that enough to create a federal crime? Or did the payment have to be linked to a specific official act (a “quid pro quo”), or a political favor. In legal jargon, the difference amounts to a distinction between a “gratuity” and a “bribe.”

The Fifth Circuit clarified the matter and thereby limited what the FBI and DOJ can go after at the state and local level. “Gratuity is not enough – it has to be a “bribe.” There must be a “quid pro quo,” that is, the payment must be tied to a specific action. For example, in exchange for X amount of money, the public official will vote “yes” or “no” on this or that bill or on a resolution to hire this or that contractor.

This decision clears a major ambiguity in the law and should clarify when allegations of public corruption will be investigated and prosecute at the federal level.

Click here to view the full 5th circuit case document

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