Justice Department Proposes Legislation to Advance Anti-Corruption Efforts
The Department of Justice has an unparalleled commitment to, and record of, fighting corruption through law enforcement action. These efforts are currently reflected through six anti-corruption programs aimed at public integrity prosecutions, bribery prosecutions, prosecutions of taxpayers who seek to conceal foreign accounts, money laundering prosecutions, our Kleptocracy Initiative and finally, our assistance to foreign counterparts to fight corruption.
In order to advance those efforts and provide additional tools to advance our anti-corruption work, the department will submit to Congress proposals for legislative amendments in two areas: first, regarding the illegal proceeds of transnational corruption; and second, regarding substantive corruption offenses. Details of those proposals are below.
PROPOSALS REGARDING THE ILLEGAL PROCEEDS OF TRANSNATIONAL CORRUPTION
1. EXPAND FOREIGN MONEY LAUNDERING PREDICATES TO INCLUDE ANY VIOLATION OF FOREIGN LAW THAT WOULD BE A MONEY LAUNDERING PREDICATE IF COMMITTED IN THE UNITED STATES.
Currently, U.S. prosecutors can charge money laundering cases and file asset recovery actions for specific acts of foreign corruption and these actions can capture, without specifically charging violations of foreign law relating to conduct occurring in another country, most of the foreign corruption predicate acts. The proposed amendment will allow prosecutors to directly pursue kleptocracy cases and prosecute for money laundering the use of proceeds from the full range of foreign corruption activities criminalized pursuant to the 2003 U.N. Convention Against Corruption. Adopting this amendment will complement the ability of U.S. prosecutors to charge money launderers and recover kleptocracy proceeds while also enhancing the stature of the United States in promoting an anti-corruption and anti-organized crime agenda worldwide.
2. ALLOW ADMINISTRATIVE SUBPOENAS FOR MONEY LAUNDERING INVESTIGATIONS.
Adopting the proposed amendment will enhance the ability of investigators to obtain records in money laundering investigations. In criminal money laundering investigations, such records are often obtained through the issuance of grand jury subpoenas, but law enforcement occasionally needs the speed and flexibility to subpoena administratively.
3. ENHANCE LAW ENFORCEMENT’S AUTHORITY TO ACCESS FOREIGN BANK OR BUSINESS RECORDS BY SERVING BRANCHES LOCATED IN THE UNITED STATES.
Current law permits U.S. law enforcement to obtain bank records located abroad by serving subpoenas on branches of the bank located in the United States. However, obtaining such records as legally admissible evidence can still result in protracted negotiation and litigation. This can ultimately result in law enforcement not being able to obtain those records. Adopting this amendment will enhance the ability of U.S. investigators to obtain overseas records as a form of legally admissible evidence.
4. CREATE A MECHANISM TO USE AND PROTECT CLASSIFIED INFORMATION IN CIVIL ASSET RECOVERY CASES.
Because kleptocracy investigations typically involve high-ranking foreign government officials, the cases may increasingly involve classified information. In criminal cases, the Classified Information Procedures Act (CIPA) provides a framework for utilizing and disclosing such information. Currently, if litigation over classified information arises in a civil kleptocracy case, there are no CIPA-type procedures in place. This amendment creates a framework for the use of classified information in kleptocracy-related civil asset recovery cases.
5. MAKE THE TIME PERIOD IN WHICH THE U.S. CAN RESTRAIN PROPERTY BASED ON A REQUEST FROM A FOREIGN COUNTRY, CURRENTLY 30 DAYS, PARALLEL TO THE DOMESTIC RESTRAINT PERIOD, WHICH IS 90 DAYS; AND EXTEND THE PROCEDURES TO AUTHENTICATE FOREIGN RECORDS OF REGULARLY CONDUCTED ACTIVITY IN CRIMINAL CASES TO CIVIL ASSET RECOVERY CASES.
Multilateral cooperation in kleptocracy cases is essential for sharing evidence and determining which authorities are best positioned to seize particular assets. There are several impediments, however, to effective parallel work. First, there is a discrepancy between the time limits imposed in domestic and foreign asset recovery cases. In a case initiated by U.S. authorities, the government has 90 days from the time of seizure to initiate a forfeiture proceeding – but the government has only 30 days from seizure based on a request from a foreign government. This amendment extends the 90 day period to requests from a foreign country. Second, in these cases U.S. prosecutors may seek to use foreign business records. In a criminal case, foreign business records are admissible if there is a certificate attesting that the document meets the business records test. This amendment extends the certificate process to civil asset recovery cases.
PROPOSALS REGARDING SUBSTANTIVE CORRUPTION OFFENSES
- AMEND 18 U.S.C. § 666 (THEFT OR BRIBERY CONCERNING PROGRAMS RECEIVING FEDERAL FUNDS) TO EXPRESSLY CRIMINALIZE THE CORRUPT OFFER OR ACCEPTANCE OF PAYMENTS TO “REWARD” OFFICIAL ACTION AS WELL AS THOSE INTENDED TO “INFLUENCE” OFFICIAL ACTION.
- AMEND 18 U.S.C. § 666 (THEFT OR BRIBERY CONCERNING PROGRAMS RECEIVING FEDERAL FUNDS) TO CORRECT A DRAFTING ERROR REGARDING BONA FIDE SALARY and TO LOWER THE DOLLAR THRESHOLD FROM $5,000 TO $1,000.
The two proposed amendments to 18 U.S.C. § 666 are intended to give full effect to the language that Congress initially enacted and clarify Congress’s intent. The first proposed amendment will 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 which have addressed this issue, finding that the plain language of the statute criminalizes the corrupt offer or acceptance of rewards. The second proposed amendment will 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.
The department has transmitted these proposals to Congress and encourages review and approval in order to further advance the U.S. government’s anti-corruption tools and efforts.