|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 Elections—Consultation Requirement|
|9-85.220||Purchase and Sale of Public Office (18 U.S.C. §§ 210, 211)|
|9-85.300||Non-Interference in Elections When Conducting Federal Criminal Investigations Involving Ballot Fraud|
|9-85.400||Armed Officials Where Elections are Held|
|9-85.500||Actions that May Have an Impact on an Election|
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, Deputy Attorney General, Associate Attorney General, or Assistant Attorney General for the Civil Rights or Criminal Division 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 that provision 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 Elections—Consultation Requirement
Consultation with the Public Integrity Section of the Criminal Division is required in each federal criminal matter that involves alleged or suspected violations of federal or state campaign financing laws, federal patronage crimes, or corruption of the election process.
Federal prosecutors and agents must consult with the Public Integrity Section prior to opening any such matter or taking any potentially overt investigative step, including but not limited to interviewing witnesses, issuing grand jury subpoenas, executing search warrants, or conducting surveillance. This provision does not, however, apply to intaking a complaint, provided that the intaking component advises the complainant that receiving a complaint in no way implies that there is or will be any federal criminal investigation of the allegation.
Federal prosecutors shall also consult with the Public Integrity Section before instituting grand jury proceedings relating to, or filing an information or seeking an indictment charging, a campaign finance, ballot fraud, or patronage offense.
Matters for which consultation with the Public Integrity Section is required include, but are not limited to, investigations and prosecutions of the offenses codified in: 18 U.S.C. §§ 592 to 611; 52 U.S.C. §§ 10307, 20511, 20701, 30101-30145; and prosecutive theories that involve election fraud or campaign fund raising violations using 18 U.S.C. §§ 241, 242, and 245; 18 U.S.C. § 371; 18 U.S.C. §§ 1341, 1343, and 1346; 18 U.S.C. § 1952; and 18 U.S.C. §§ 1956 and 1957.
[cited in JM 9-43.100] [updated August 2022]
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).
9-85.300 Non-Interference in Elections When Conducting Federal Criminal Investigations Involving Ballot Fraud
Ballot fraud is crime involving the process by which voters are registered, votes are casts, or votes are tabulated. The Department has long recognized that the States – not the federal government – are responsible for administering elections, determining the validity of votes, and tabulating the results, with challenges handled by the appropriate election administrators, officials, legislatures, and courts. The Department has a limited role in these processes and should generally avoid interfering or appearing to interfere with election administration, tabulation, validation, or certification. See § 9-85.500. The Department’s role is limited to investigating and prosecuting violations of federal election laws and deterring criminal conduct. Accordingly, the Department should not engage in overt criminal investigative measures in matters involving alleged ballot fraud until the election in question has been concluded, its results certified, and all recounts and election contests concluded. Doing otherwise runs the risk of chilling legitimate voting and campaign activities and of interjecting the investigation itself into ongoing campaigns and the adjudication of any ensuing election contest. It may, however, often be appropriate, in consultation with the Public Integrity Section, to share information and allegations involving such matters with state or local authorities where an immediate need for overt measures exists. Exceptions to this policy may be recognized, but only with the approval of the Public Integrity Section.
9-85.400 Armed Officials Where Elections are Held
Issues involving the application of 18 U.S.C. § 592, which prohibits armed federal presence where elections are held, are supervised by the Public Integrity Section. When issues arise regarding the presence of armed officials at a location where an election is being held, federal prosecutors and agents must consult the Public Integrity Section.
9-85.500 Actions that May Have an Impact on an Election
Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charge, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
[added August 2022]