|9-85.101||Bribery of Public Officials|
|9-85.110||Investigations Involving Members of Congress|
|9-85.200||Federally Protected Activities (18 U.S.C. § 245)|
|9-85.210||Violations of Campaign Financing Laws, Federal Patronage Laws, and Corruption of the Electional Process—Consultation Requirement|
|9-85.215||Investigations of Federal Election Fraud [under review]|
|9-85.220||Purchase and Sale of Public Office (18 U.S.C. §§ 210, 211)|
9-85.100 Supervisory Jurisdiction
This chapter addresses crimes which affect government integrity, including bribery of public officials and accepting a gratuity, election crimes, and other related offenses. The Public Integrity Section of the Criminal Division has supervisory jurisdiction over these offenses.
9-85.101 Bribery of Public Officials
Section 201 of Title 18 is entitled "Bribery of public officials and witnesses." The statute comprises two distinct offenses, however, in common parlance only the first, codified in section 201(b) of the statute, is true "bribery." 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. Due to this distinction, government attorneys should take particular care and should not hesitate to consult with the Public Integrity Section of the Criminal Division.
[updated January 2020]
9-85.110 Investigations Involving Members of Congress
Consultation with the Public Integrity Section is required in all investigations involving a Member of Congress or congressional staff member. In particular, the Public Integrity Section must be consulted prior to taking any of the following steps: (1) interviewing a Member of Congress or congressional staff member; (2) subpoenaing a Member of Congress or congressional staff member; or (3) applying for a search warrant for a location or device in which legislative materials are likely to be found. In addition, consensual monitoring in an investigation involving allegations of misconduct by a Member of Congress requires approval by a Deputy Assistant Attorney General. See JM 9-7.302.
9-85.200 - Federally Protected Activities (18 U.S.C. § 245)
No prosecution of an offense described in 18 U.S.C. § 245 (Federally Protected Activities) may be undertaken by the United States except upon the certification of the Attorney General or Deputy Attorney General that in his or her judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice. The function of certification may not be delegated. See 18 U.S.C. § 245(a)(1). The anti-riot provision, 18 U.S.C. § 245(b)(3), and violations of 18 U.S.C. § 245(b)(1), insofar as it relates to matters not involving discrimination or intimidation on grounds of race, color, religion, or national origin, are assigned to the Criminal Division and requests for certification relating to them should be sent to the Criminal Division.
When the offense involves voting, and race is not an issue, prosecutors should contact the Public Integrity Section of the Criminal Division. When the offense involves voting and race is an issue, prosecutors should contact the Criminal Section of the Civil Rights Division. For required authorizations in civil rights cases, including offenses under 18 U.S.C. §§ 247 and 249, see JM Sections 8-1.010 to 8-3.300.
9-85.210 - Violations of Campaign Financing Laws, Federal Patronage Laws, and Corruption of the Electional Process—Consultation Requirement
Consultation with the Public Integrity Section of the Criminal Division is required in all federal criminal matters that focus on violations of federal or state campaign financing laws, federal patronage crimes, and corruption of the election process. These offenses include, but are not limited to, offenses described in: 18 U.S.C. §§ 241 to 242, 592 to 611; 42 U.S.C. §§ 1973i(c), 1973i(e), and 1973gg-10; 2 U.S.C. §§ 431 to 455; and prosecutive theories that focus on election fraud or campaign fund raising violations using 18 U.S.C. §§ 1341, 1343, and 1346; 18 U.S.C. § 1952; 18 U.S.C. §§ 1956 and 1957.
With regard to federal campaign financing matters arising under 52 U.S.C. §§ 30101-30145, United States Attorneys shall consult with the Public Integrity Section before any inquiry or preliminary investigation is requested or conducted. United States Attorneys shall also consult with the Public Integrity Section before instituting grand jury proceedings, filing an information, or seeking an indictment charging a campaign financing crime.
With regard to all other election crime matters (other than those described in JM 9-85.200 (Federally Protected Activities)), namely, alleged election fraud or patronage offenses, United States Attorneys shall consult with the Public Integrity Section before an investigation beyond a preliminary inquiry is requested or conducted. In this connection, the Department views any voter interviews in the preelection and balloting periods—other than interviews of a complainant and any witnesses he or she may identify—as beyond a preliminary investigation. Thus, the Public Integrity Section should be consulted before such interviews.
Finally, as with campaign financing matters, United States Attorneys also shall consult with the Public Integrity Section before instituting grand jury proceedings, filing an information, or seeking an indictment charging an election fraud or patronage offense.
[updated April 2018] [cited in JM 9-43.100]
9-85.215 - Investigations of Federal Election Fraud
[under review February 2021]
In conducting preliminary inquiries or investigations relating to allegations of federal election fraud, Department personnel must exercise care to avoid taking steps that could inadvertently impact an election or create an appearance that the Department is attempting to interfere in an election. While credible allegations should be addressed in a timely and effective manner, it is equally important that Department personnel exercise appropriate caution and maintain the Department's absolute commitment to fairness, neutrality and non-partisanship. As a general matter, it will likely be prudent to conduct a preliminary inquiry (as that term is defined in JM 9-85.210) to initially assess the evidence and to eliminate specious, speculative or far-fetched allegations. Consultation with the Public Integrity Section of the Criminal Division is required to conduct any investigation beyond a preliminary inquiry. Appropriate preliminary inquiries or investigations may be carried out in the period leading up to an election, in the voting phase, in the pre-certification phase and after certification. However, the phase of the election – along with all other relevant factors – should be taken into consideration when deciding whether it is appropriate to take overt investigative steps. For instance, any risk that overt Department action could impact the outcome of an election is greatly diminished, if it exists at all, once voting has concluded. In situations where claims of misconduct, if true, would clearly not impact the outcome of an election, it may be prudent to defer overt investigation until after the election is certified and all legal challenges are concluded. In situations where claims of misconduct, if true, could impact the outcome of an election, Department personnel should strive to resolve allegations within a timeframe that would allow appropriate authorities to rectify any misconduct.
To view additional guidance on these matters, see the Attorney General’s November 9, 2020 Memorandum on Post-Voting Election Irregularity Inquiries.
9-85.220 - Purchase and Sale of Public Office (18 U.S.C. §§ 210, 211)
United States Attorneys shall consult with the Public Integrity Section of the Criminal Division before instituting grand jury proceedings, filing an information, or seeking an indictment for violations of 18 U.S.C. §§ 210 and 211 (Purchase and Sale of Public Office).
[updated April 2018]