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Is It a Crime for Members to Violate the Gift Rules?

I work for an ethics watchdog group that has been seeking reform for years. The recently passed Honest Leadership and Open Government Act included many of the changes we have sought, but it did not go far enough. Most importantly, although it is now a federal crime for a lobbyist to make a gift that violates the Congressional gift rules, the act does not assign criminal liability to the official receiving such a gift. Is it really the case that, while a lobbyist’s violation of the gift rules is a crime, a Member’s violation is merely a rules violation? Or might Members and staff somehow face criminal liability for violations of Congressional gift rules?

[IMGCAP(1)]A: You are right that the act, on its face, does not subject Members and staff to criminal liability. However, the good news for you and bad news for Members and staff is that, with a little nifty legal footwork, a prosecutor might use the act to expose Members and staff to criminal liability for violations of the gift rules that involve lobbyists. But before turning to the reasons why, we should first be careful to distinguish between the federal bribery statute and the Congressional gift rules. These are two completely different animals, and your question concerns only the Congressional gift rules.

The federal bribery statute criminalizes gifts to public officials in exchange for, or in recognition of, some official act. The statute applies to Congressional officials who receive gifts as well as individuals who offer them. The critical element for liability is the linkage of a gift to an official act.

In contrast, unlike the bribery statute, the Congressional gift rules apply even in the absence of a link to an official act. The House and Senate established the gift rules to define when Congressional officials may and may not receive gifts.

Given the rules’ purpose, it is no surprise that, until recently, they applied only to Members and staff. The House and Senate ethics committees administer the rules, investigate alleged violations and recommend sanctions where deemed appropriate. The possible sanctions for violations of the gift rules include censure, reprimand, a fine and even expulsion. The ethics committees cannot, however, impose criminal sanctions.

This is where the Honest Leadership and Open Government Act comes in. For the first time, the Congressional gift rules extend to individuals and entities outside Congress. Lobbyists and employers of in-house lobbyists now face stiff civil penalties for knowingly making a gift to a covered official that violates the Congressional gift rules. As you point out, they also face criminal liability, including up to five years in jail, if they violate the rules “corruptly.”

In light of these changes, lobbyists and employers of in-house lobbyists are rushing to learn a complex set of rules that were designed to apply only to Members and staff, and that, until now, never exposed anyone to criminal liability.

Yet, as you point out, the act does not extend criminal liability for gift rule violations to Members and staff. The act makes clear that such liability applies only to lobbyists and businesses that employ them. In fact, a strong argument exists that Congress’ omission of Members and staff from the list of individuals who face criminal liability signals its legislative intent that Members and staff should not be criminally liable for gift rule violations.

Despite the strength of this argument, Members and staff still might face a risk of criminal liability for violations of Congressional gift rules. Prosecutors might attempt to use other criminal statutes to link the gift rules to the act.

For example, under the federal conspiracy statute it is a crime to make an agreement to violate another federal criminal statute. A prosecutor might argue that, if a lobbyist knowingly and corruptly makes a gift to a Member that violates the gift rules, and the Member agrees to receive the gift, the Member and lobbyist have made an agreement to violate the act. The prosecutor could contend that the Member’s participation in the agreement therefore subjects him to criminal liability.

Likewise, it is a crime to aid and abet the commission of any federal crime. While it might sound odd to charge the recipient of a gift with aiding and abetting the donor in giving the gift, prosecutors might see this as another source of potential criminal liability. Under this theory, the prosecutor would argue that, where a Member takes some affirmative step to help a lobbyist’s violation of the act, the Member aids and abets the lobbyist’s commission of a crime.

In sum, historically the only penalties that Members and staff have faced for violations of the gift rules were the sanctions recommended by the House and Senate ethics committees. In passing the Honest Leadership and Open Government Act, Members may have unwittingly opened an avenue for federal prosecutors to investigate and prosecute them for gift rule violations involving lobbyists.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.

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