September 7, 2011
Honorable F. James Sensenbrenner, Jr., Chairman
Honorable Robert C. Scott, Ranking Member
House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security
Washington, DC 20510
Re: H.R. 2572, the “Clean Up Government Act of 2011”
Sent Via Fax
Dear Reps. Sensenbrenner and Scott:
Today our organizations write to strongly endorse and call for swift committee consideration and passage of the “Clean Up Government Act of 2011” (H.R. 2572), legislation that would provide critically needed amendments to the federal criminal statutes.
As you are well aware, last year’s Supreme Court decision in Skilling v. United States eviscerated an entire category of deceptive, fraudulent and corrupt conduct from the scope of what was known as the honest services fraud statute (18 U.S.C. 1346). For decades government attorneys have used 1346 to prosecute public officials who engage in malfeasance, such as undisclosed self-dealing, that is not as simple as a direct quid pro quo or a freezer full of money. Unfortunately, the Skilling decision effectively struck down as unconstitutionally vague the honest services language and consequently, there is now a gaping hole in the Department of Justice’s (DOJ) ability to address a vast swath of public corruption.
H.R. 2572 is constitutionally sound and heeds the Supreme Court’s directive for more clarity and specificity. The “Clean Up Government Act” directly and effectively addresses concerns raised about previous versions regarding over overcriminalization and prosecutorial abuse because of vagueness and lack of clarity. The bill borrows existing language from 18 U.S.C. 208, a well-established federal conflict-of-interest statute that already applies to the executive branch and, more importantly, has been upheld as constitutionally sound by the Supreme Court and U.S. Court of Appeals for the Fifth Circuit. Further, as DOJ correctly testified at the hearing, under the proposed statute no public official could be prosecuted unless he or she knowingly conceals, covers up, or fails to disclose material information, which the official already is already required by law or regulation to disclose, with the specific intent to defraud. As crafted, H.R. 2572 removes the risk that a public official can be convicted for unwitting conflicts of interest or mistakes.
The legislation also overturns other misguided court decisions limiting the use of the illegal gratuities statute. By reversing the Supreme Court’s decision in United States v. Sun-Diamond Growers, 526 U.S. 398 (1999), the bill revives the federal government’s power to criminally charge public officials who receive gifts because of their governmental positions with accepting illegal gratuities. In addition, responding to United States v. Valdes, 475 F.3d 1319 (D.C. Cir. 2007), the bill makes clear government officials who accept private compensation for using the powers their jobs afford them may be subject to criminal prosecution.
We urge you to ensure that any modifications made to the bill before it is reported out of committee leave intact these critically needed legislative reforms. Only then can we hold accountable public officials who secretly act in their own financial self-interest, rather than in the interest of the public.
Citizens for Responsibility and Ethics in Washington (CREW)
Campaign Legal Center
Project on Government Oversight (POGO)
United States v. Hedges, 364 U.S. 520 (1961).
United States v. Richard J. Nevers, 7 F.3d 59 (5th Cir. 1993).