Section 201 of Title 18 is entitled "Bribery of public officials and witnesses." The statute comprises two distinct offenses, however, and in common parlance only the first of these is true "bribery."
The first offense, codified in section 201(b), prohibits the giving or accepting of anything of value to or by a public official, if the thing is given "with intent to influence" an official act, or if it is received by the official "in return for being influenced."
The second offense, codified in section 201(c), concerns what are commonly known as "gratuities," although that word does not appear anywhere in the statute. Section 201(c) prohibits that same public official from accepting the same thing of value, if he does so "for or because of" any official act, and prohibits anyone from giving any such thing to him for such a reason.
The specific subsections of the statute are:
- a. § 201(b)(1): offering a bribe to a public official
b. § 201(b)(2): acceptance of a bribe by a public official
a. § 201(c)(1)(A): offering a gratuity to a public official
b. § 201(c)(1)(B): acceptance of a gratuity by a public official.
The two offenses differ in several respects. The most important of these differences concerns how close a connection there is between the giving (or receiving) of the thing of value, on the one hand, and the doing of the official act, on the other. If the connection is causally direct - if money was given essentially to purchase or ensure an official act, as a "quid pro quo" then the crime is bribery. If the connection is looser - if money was given after the fact, as "thanks" for an act but not in exchange for it, or if it was given with a nonspecific intent to "curry favor" with the public official to whom it was given -then it is a gratuity. The distinction is sometimes hard to see, but the statute makes it critical: a § 201(b) "bribe" conviction is punishable by up to 15 years in prison, while a § 201(c) "gratuity" conviction permits only a maximum 2-year sentence. In addition, with a "bribe" the payment may go to anyone or to anything and may include campaign contributions, while with a "gratuity" the payment must inure to the personal benefit of the public official and cannot include campaign contributions.
[cited in JM 9-85.101]