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Title 9: Criminal

9-85.000 - Protection of Government Integrity

9-85.100 Supervisory Jurisdiction
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.

[Updated April 2018] 


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 (“PIN”) is required in all investigations involving a Member of Congress or congressional staff member (“Congressional Staffer”).[1]  As set forth in the table below, such consultation shall occur, and where required, approval shall be obtained, prior to opening an investigation or taking particular investigative steps involving a Member of Congress or Congressional Staffer, including, but not limited to:

  • interviewing or subpoenaing a Member of Congress or Congressional Staffer (unless the Member of Congress or Congressional Staffer is being interviewed as a victim);
  • obtaining a subpoena, 2703(d) order, search warrant, or other legal process for records, information, or property belonging to a Member of Congress, Congressional Office, or Congressional Staffer; or
  • engaging in consensual monitoring of oral communications of a Member of Congress or Congressional Staffer.  Consensual monitoring in an investigation involving allegations of misconduct by a Member of Congress also requires approval by a Deputy Assistant Attorney General.  See JM 9-7.302.

PIN may also recommend partnership with United States Attorney’s Offices or other prosecuting components on particular matters that implicate PIN’s areas of expertise.

As set forth in the table below, certain charging decisions and resolutions of criminal charges in such investigations require PIN approval.  For example, any criminal charge, resolution of a criminal charge, or declination in a matter in which a Member of Congress is an investigative subject or target requires prior approval by PIN.  (Note that plea agreements involving defendants who are candidates for Congress also require prior approval by PIN.  See JM 9-16.110.)  Where consultation or approval is required, no investigative action shall be taken until such consultation has been completed or such approval has been obtained.

U.S. Attorney’s Offices should also apply elevated internal review and approval requirements for all investigative steps identified below, with U.S. Attorney approval required where PIN approval is required.

The requirements in this section are in addition, and not an alternative, to other consultation and approval requirements in the Justice Manual.  Further, when an investigative step governed by one of the requirements set forth in this section warrants the filing of an Urgent Report, that report must still be submitted.  See JM 1-13.120.  The Urgent Report should indicate whether PIN concurred with, or approved of, the planned investigative step.

Investigative Step/Prosecutorial Decision

Consultation or Approval Requirement[2]

Case Opening, Where Member of Congress Is a Subject or Target

Consultation with PIN

Issuance of Subpoena to a Congressional Office, Member of Congress, or Congressional Staffer

Consultation with PIN

Issuance of Subpoena to Third Party for Records Belonging to a Congressional Office, Member of Congress, or Congressional Staffer When Related to the Staffer’s Duties

Approval by PIN

Issuance of Subpoena to Third Party for Records Belonging to Congressional Staffer When Unrelated to the Staffer’s Duties

Consultation with PIN

Applications, Pursuant to 18 U.S.C. §§ 2703(d) or 2705(b), for Records Belonging to a Congressional Office Member of Congress, or Congressional Staffer When Related to the Staffer’s Duties

Approval by PIN

Applications, Pursuant to 18 U.S.C. §§ 2703(d) or 2705(b), for Records Belonging to Congressional Staffer When Unrelated to the Staffer’s Duties

Consultation with PIN

Application for Pen Register or Trap & Trace Surveillance of Devices or Accounts Belonging to a Congressional Office Member of Congress, or Congressional Staffer When Related to the Staffer’s Duties

Approval by PIN

Application for Pen Register or Trap & Trace Surveillance of Devices or Accounts Belonging to a Congressional Staffer When Unrelated to the Staffer’s Duties

Consultation with PIN

Interview of Member of Congress or Congressional Staffer, Except When Member of Congress or Congressional Staffer Is a Victim

Consultation with PIN

Government-Directed Contact, by a Source or Government Cooperator, with Member of Congress or Congressional Staffer

Approval by PIN

Application for Warrant for Records, Information, or Property Belonging to a Congressional Office, Member of Congress, or Congressional Staffer, or for a Location or Device in Which Legislative Materials Are Likely To Be Found[3]

Approval by PIN

Application for Title III Electronic Surveillance if Member of Congress’s or Congressional Staffer’s Communications May Be Intercepted 

Approval by PIN[4]

Consensual Electronic Monitoring of Oral Communications of Member of Congress or Congressional Staffer

Approval by PIN

Charging (Whether by Criminal Complaint, Information, or Indictment) in Matter in Which a Member of Congress Is a Subject or Target for Conduct Related to Public Office or Campaign Activities

Approval by PIN

Charging (Whether by Criminal Complaint, Information, or Indictment) in Matter in Which a Member of Congress Is a Subject or Target for Conduct Unrelated to Public Office or Campaign Activities

Consultation with PIN

Resolution of Criminal Charges (Guilty Plea, DPA, NPA, or Declination) in Matter in Which a Member of Congress Is a Subject or Target

Approval by PIN

Resolution of Criminal Charges Against a Congressional Staffer (Guilty Plea, DPA, NPA, or Declination) in Matter in Which a Member of Congress Is Not a Subject or Target

Consultation with PIN


[1] In investigations in which Members of Congress or their offices or staff are crime victims—such as in a threats case, or when money or property is stolen from a Congressional office—prosecutors are generally encouraged but not required to consult with PIN.  However, if investigative or prosecutorial steps that are otherwise addressed in this section become necessary in such a case, then the PIN consultation and approval requirements set forth in the chart below would apply. For example, if the investigation into a crime committed against a Member of Congress were to require a subpoena for records belonging to a Congressional office, then PIN consultation would be required.

[2] PIN should notify the Criminal Division’s Assistant Attorney General of consultations and approvals undertaken.

[3] This approval requirement also applies to warrants for GPS or other location data and tracking devices for vehicles or other property, devices, or accounts belonging to a Member of Congress, Congressional Staffer, Congressional Office, or in which legislative materials are likely to be found.

[4] Additional approvals from the Office of Enforcement Operations, a Criminal Division Deputy Assistant Attorney General, and/or an Assistant Attorney General are required for TIIIs, as well as consensual monitoring in certain circumstances.  See JM 9-7.000 et seq. 

[updated November 2023]

 


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.

[cited in JM 9-2.112JM 9-85.210] [updated August 2022]


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).

[updated August 2022] 


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 cast, 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. 

[added August 2022] 


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.

[added August 2022] 


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 charges, 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]