Federal criminal conflict of interest

I. INTRODUCTION

The term "conflict of interest legislation" encompasses the numerous statutes passed by Congress, largely in the post-Watergate era, to prevent and punish corruption by public officials.1 This Article discusses six of those statutes, including the elements, defenses, and penalties governing those provisions.

Section II reviews the offenses of offering or accepting a bribe or improper gratuity. It examines the distinctions between bribery2 and illegal gratuities,3 as well as the elements of and defenses to the charge of bribery. Section II concludes by discussing the penalties for both bribery and illegal gratuities. Section III begins with an analysis of the provisions regarding unauthorized compensation,4 including the elements of and defenses to the offense. It then examines the provisions prohibiting members of Congress from practicing in the United States Court of Federal Claims or the United States Court of Appeals for the Federal Circuit, and those prohibiting government employees from prosecuting claims against the government or representing others before a list of select government forums.5 Section III continues by discussing those provisions dealing with post-employment lobbying and representation,6 participating in activities in which an official has a financial interest,7 and improperly accepting outside salaries.8 The section concludes by examining the sanctions that may be imposed on public officials and private citizens who make criminal use of a public office for private gain.9

II. BRIBERY AND ILLEGAL GRATUTIES

While not always characterized as a conflict of interest provision,10 prohibition of bribery has been part of the criminal conflict of interest statute since 1961.11 The statute also criminalizes certain gratuities given to or requested by federal public officials,12 which serve as a " `lesser included' offense of the bribery statute." 13

The primary difference between bribery and illegal gratuities is that bribery requires a corrupt intent, while an illegal gratuity does not.14 Illegal gratuities deal with situations where something of value is given to influence actions a public official has already performed or is already committed to perform.1 Bribery, on the other hand, involves a quid pro quo, where something of value is given to influence an official to perform a specific act.16 Therefore, an exchange involving a former official, for example, can only be an illegal gratuity, not a bribe.17

However, due to the similarity...