Tags
anti-corruption, anti-corruption laws, anti-corruption practices, corruption, cricketdiane, impeachment, international anti-corruption, OECD anti-corruption, presidential wrongdoing, trump, trump impeachment, Ukraine transcript, UNCAC, US president extortion of Ukraine, USAID anti-corruption, whistleblower complaint
In plain terms:
It is illegal to solicit a bribe from a foreign leader. (even if you are the president of the United States.)
This is based on the U.S. Foreign Corrupt Practices Act, UNCAC (The United States is a state party to the United Nations Convention Against Corruption), The IACAC (The Inter-American Convention Against Corruption), and the OECD AntiBribery Convention.
The United States ratified the UNCAC on October 30, 2006. The UNCAC requires parties to criminalize a wide range of corrupt acts, including domestic and foreign bribery and related offenses such as money laundering and obstruction of justice. The UNCAC also establishes guidelines for the creation of anti-corruption bodies, codes of conduct for public officials, transparent and objective systems of procurement, and enhanced accounting and auditing standards for the private sector.
Bribery versus Extortion
Article 15 of the Convention against Corruption defines bribery as both the promise, offering or giving of an undue advantage to a national, international or foreign public official and the solicitation or acceptance of an undue advantage by a national public official.
https://www.unodc.org/e4j/en/organized-crime/module-4/key-issues/bribery-versus-extortion.html
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Under federal law, individuals or companies that aid or abet a crime, including an FCPA violation, are as guilty as if they had directly committed the offense themselves.
The aiding and abetting statute provides that whoever “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission,” or “willfully causes an act to be done which if directly performed by him or another would be an offense against the United States,” is punishable as a principal.
No problem does more to alienate citizens from their political leaders and institutions, and to undermine political stability and economic development, than endemic corruption among the government, political party leaders, judges, and bureaucrats. — USAID Anti-Corruption Strategy
Pg. 3
https://www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf
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20 See International Anti-Bribery and Fair Competition Act of 1998, Pub.
L. 105-366, 112 Stat. 3302 (1998); see also S. Rep. No. 105-277, at 2-3
(describing amendments to “the FCPA to conform it to the requirements
of and to implement the OECD Convention”).
2 Id.; H.R. Rep. No. 95-640, at 4-5 (1977) [hereinafter H. R. Rep. No.
95-640], available at http://www.justice.gov/criminal/fraud/fcpa/
history/1977/houseprt-95-640.pdf.
The House Report made clear Congress’s concerns:
The payment of bribes to influence the acts or decisions of foreign officials, foreign political parties or candidates for foreign political office is unethical.
It is counter to the moral expectations and values of the American public. But not only is it unethical, it is bad business as well. It erodes public confidence in the integrity of the free market system. It short-circuits the marketplace by directing business to those companies too inefficient to compete in terms of price, quality or service, or too lazy to engage in honest salesmanship, or too intent upon unloading marginal products. In short, it rewards corruption instead of efficiency and puts pressure on ethical
enterprises to lower their standards or risk losing business.
3 See, e.g., U.S. Agency for Int’l Dev., USAID Anticorruption
Strategy 5-6 (2005), available at http://transition.usaid.gov/policy/
ads/200/200mbo.pdf.
The growing recognition that corruption poses a severe threat to domestic and international security has galvanized efforts to combat it in the United States and abroad.
See, e.g., Int’l AntiCorruption and Good Governance Act of 2000, Pub. L. No. 106-309,
§ 202, 114 Stat. 1090 (codified as amended at 22 U.S.C. §§ 2151-2152 (2000))
(noting that “widespread corruption endangers the stability and security of societies, undermines democracy, and jeopardizes the social, political, and economic development of a society. . . . [and that] corruption facilitates criminal activities, such as money laundering, hinders economic development, inflates the costs of doing business, and undermines the legitimacy of the government and public trust”).
My Note –
This speaks of international corruption but since Trump decided to use Ukraine to harass his political opponents family as a favor he asked of Ukrainian President Zelensky in the recently published phone call with him, it now applies to our president as well.
Since Trump was singly deciding to withhold military aid from Ukraine that Congress had already obligated to them and knew that fact during the phone call (of which we have no word-for-word transcript) – but Ukraine knew that money was not in their hands yet and had to be given to them within the next few weeks.
Phone call from Trump July 25 – US military funding Money had to be made available to Ukraine and spent by September 30. They knew it hadn’t come yet despite the inspection certification hoops they had been made to jump through – of anti-corruption efforts by Ukraine was completed, filed and official by US inspectors since May, according to the Pentagon letter to that effect.
So, now this text below from this document refers to the president as well:
International corruption also undercuts good governance and impedes U.S. efforts to promote freedom and democracy, end poverty, and combat crime and terrorism across the globe.5 Corruption is also bad for business. Corruption is anti-competitive, leading to distorted prices and disadvantaging honest businesses that do not pay bribes. It increases the cost of doing business globally and inflates the cost of government contracts in developing countries.6 Corruption also introduces significant uncertainty into business transactions: Contracts secured through bribery may be legally unenforceable, and paying bribes on one contract often results in corrupt officials making ever-increasing demands.
https://www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf (pg.
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Under federal law, individuals or companies that aid
or abet a crime, including an FCPA violation, are as guilty as
if they had directly committed the offense themselves. The
aiding and abetting statute provides that whoever “commits
an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission,” or “willfully causes an act to be done which if directly performed
by him or another would be an offense against the United
States,” is punishable as a principal.199 Aiding and abetting is
not an independent crime, and the government must prove
that an underlying FCPA violation was committed.200
(pg. 34)
What Does “Willfully” Mean and When
Does It Apply?
In order for an individual defendant to be criminally liable under the FCPA, he or she must act “willfully.”81 Proof of willfulness is not required to establish corporate criminal or civil liability,82 though proof of corrupt intent is.
The term “willfully” is not defined in the FCPA, but it has generally been construed by courts to connote an act committed voluntarily and purposefully, and with a bad purpose, i.e., with “knowledge that [a defendant] was doing a ‘bad’ act under the general rules of law.”83
As the Supreme Court explained in Bryan v. United States, “[a]s a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ In other words, in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’”84
Notably, as both the Second Circuit and Fifth Circuit Courts of Appeals have found, the FCPA does not require the government to prove that a defendant was specifically aware of the FCPA or knew that his conduct violated the FCPA.85 To be guilty, a defendant must act with a bad purpose, i.e., know generally that his conduct is unlawful.
U.S. Foreign Corrupt Practices Act
https://www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf
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[All references in this document and quoted materials are from this document unless otherwise noted –
https://www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf ]
In fiscal year 2009, the U.S. government provided more than $1 billion for anti-corruption and related good governance assistance abroad. {Maybe some of it should have been spent to teach Mr. Trump about anti-corruption and good governance as well.}
Note – This blog post was researched and written by CricketDiane, Diane C Phillips,
09-29-2019
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