WASHINGTON - A recent Supreme Court ruling may make it easier for federal prosecutors to press extortion charges against public officials, legal experts said in recent interviews.
"There will be some cases involving state and local officials that, without this ruling, would have failed," said Sarah N. Welling, a professor at the University of Kentucky College of Law, in a view echoed by several other commentators. "The impact of this case would be to make liability more easily imposed on them."
On May 26, the court ruled in Evans v. United States that federal Prosecutors do not need to prove inducement in order to gain extortion convictions against local officials under the Hobbs Act of 1946, a federal anti-racketeering law. It would be enough if an official had simply accepted a bribe, the court said.
"We hold today that the government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts," the court said in Evans, a case out of DeKalb County, Ga., involving a Federal Bureau of Investigation sting.
In Indiana, where federal officials recently closed a three-year investigation into alleged public finance corruption. Deborah Daniels, the U.S. attorney for the Southern District of Indiana, called the ruling "a helpful clarification."
"The Supreme Court made it clear a public official is still guilty of extortion even if he is not actively soliciting payments." she said.
Ms. Daniels explained that some public officials can get "cagey" about overtly soliciting money, and that without this latest ruling these officials could get off "scot free" because they took money for which they never directly asked.
"It would be a travesty if things like this are going on and our hands are tied," she said. She added that the ruling will have an application to payoffs in municipal bond deals "and any kind of bribery or extortion involving public officials."
On June 9. Ms. Daniels said her office and the FBI had decided not to pursue prosecutions as a result of the undercover investigation. She declined to comment on the reason not to prosecute.
Agents of the bureau had set up a financial advisory firm in Indianapolis to try to catch public officials taking bribes and kickbacks in connection with their official public finance activities, according to FBI documents and a financial analyst who had worked with the bureau on the probe.
Ms. Welling of the University of Kentucky said Hobbs Act investigations typically have boiled down to the question of where the idea for the payment originated.
"If a legislator goes to a lobbyist and says he can get a bill passed for $5,000, there's no question of a Hobbs Act violation," she said. "But questions arose in cases where a lobbyist went to a legislator and said, 'I have $5,000. Can this bill get passed?'"
Had the court ruled that inducement is a necessary element of extortion, federal prosecutors would not be able to go after the legislator approached by the lobbyist, and prosecution would be left up to the states.
"Well, you know, in many cases, they'd be prosecuting their friend," Ms. Welling said, adding that as a consequence, many violations would not be prosecuted. The Evans decision, she said, "would get at those kinds of cases. "
Not all analysts are convinced the Evans ruling will prove to be a boon to prosecutors, however.
"It's such a murky area," said one federal official, who requested anonymity. "The state of the law is very uncertain. It's hard to know how lower courts will reconcile the Evans decision" with a 1991 Supreme Court ruling in McCormick v. United States, the official said.
In McCormick, a campaign contribution case out of West Virginia, the court said state and local officials may be held liable for extortion only with an explicit showing that the contributions were given as a quid pro quo for official actions.
"McCormick was seen kind of as the end of Hobbs Act prosecutions" for campaign contributions, the federal official said. "People don't take bribes under the table as much as they take campaign contributions."
The official added, "I don't know that this will change the way brokerages do business" and make political contributions. "To be honest, I doubt it. "
Ms. Welling acknowledged that the two cases send somewhat contradictory signals to prosecutors.
If it's just a straight payoff, people clearly are in more trouble with Evans," she said. "But you still have the protections of McCormick, which requires a quid pro quo. Of course, if you're smart, you never have a straight quid pro quo.
The federal official said that despite the uncertainties created by the two rulings for prosecutors, "This is why the law is fun. It's not capable of being reduced to one truth scientifically."
