By J. Preston Carter J.D., LL.M.
The Department of Justice is submitting legislative proposals to Congress regarding the illegal proceeds of transnational corruption and bribery. The proposals are intended to advance the DOJ’s anti-corruption programs aimed at public integrity prosecutions, bribery prosecutions, prosecutions of taxpayers who seek to conceal foreign accounts, money laundering prosecutions, its Kleptocracy Initiative, and assistance to foreign counterparts to fight corruption.
The DOJ’s press release says five proposals relate to illegal proceeds of transnational corruption. One would permit administrative subpoenas for money laundering investigations, which would allow for speedier law enforcement actions than waiting on grand jury subpoenas under current law. Another proposal would enhance the ability of U.S. investigators to obtain foreign bank or business records as a form of legally admissible evidence when serving subpoenas on branches in the United States.
Three of the transnational corruption proposals involve kleptocracy. The first would allow prosecutors to directly pursue kleptocracy cases and bring money laundering actions with respect to the full range of foreign corruption activities criminalized pursuant to the 2003 U.N. Convention Against Corruption. The second amendment would create a framework for the use of classified information in kleptocracy-related civil asset recovery cases. The third would make the time period in which the United States can restrain property based on a request from a foreign country, which is currently 30 days, parallel to the domestic restraint period, which is 90 days. It would also extend the procedures to authenticate foreign records of regularly conducted activity in criminal cases to civil asset recovery cases.
Finally, the DOJ is advancing two amendments to 18 U.S.C. §666—“Theft or bribery concerning programs receiving Federal funds.” The first would resolve a conflict among federal circuit courts on the issue of whether after-the-fact gratuities are covered by Section 666 and would also be consistent with the interpretations of six of eight Circuit Courts of Appeals that have addressed this issue, finding that the plain language of the statute criminalizes the corrupt offer or acceptance of rewards.
The second proposal would correct a drafting error regarding bona fide salary and lower the dollar threshold to address those cases where the dollar amount involved may be low but the threat to the integrity of a government function is high.
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