IG Revelations On Agent/Journo Gift-Giving Could Be Federal Crimes

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Kevin Daley Supreme Court correspondent
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A bombshell inspector general report released Thursday revealed that several FBI employees improperly received gifts from reporters, in connection with possible leaks of sensitive information.

Although public details of these exchanges are scant, they could constitute prosecutable violations of federal gift-giving rules.

The gifts in question included “tickets to sporting events, golfing outings, drinks and meals, and admittance to nonpublic social events.”

“We will separately report on those investigations as they are concluded, consistent with the Inspector General Act, other applicable federal statutes, and OIG policy,” the report reads.

Gifting rules for executive branch officials are strict and exacting. The U.S. Office of Government Ethics provides that “executive branch employees may not solicit or accept gifts that are given because of their official positions or that come from certain interested sources (‘prohibited sources’).”

The rules define a prohibited source as a person who:

  • Is seeking official action by, is doing business or seeking to do business with, or is regulated by the employee’s agency; or
  • Has interests that may be substantially affected by performance or nonperformance of the employee’s official duties.

Those definitions derive from the U.S. Code that states violations will be sanctioned “in accordance with any applicable laws, executive orders, and rules or regulations.” (RELATED: IG Report: FBI Agents Received Free Handouts From Journalists)

These rules apply to government officials, and it is not clear if any reporters involved in these dealings could face any sort of punishment.

It’s also not clear a reporter should be considered a “prohibited source” within the meaning of the provided definitions.

Violations of gift-giving rules are sometimes prosecuted as violations of the honest services fraud (HSF) statute. High profile office-holders indicted for gift violations under this law include Democratic Sen. Bob Menendez of New Jersey and former GOP Gov. Bob McDonnell of Virginia. Jack Abramoff, the notorious Washington lobbyist, was convicted of honest services fraud.

The HSF statute is a controversial tool, as its vague provisions permit an enterprising prosecutor to make a criminal case out of good faith mistakes or generally harmless conduct. The U.S. Supreme Court dramatically narrowed the reach of the law in a 2010 case called Skilling v. U.S., confining its use to cases involving bribes or kickbacks.

Violations of federal anti-corruption laws occur when a public employee takes “official action” in exchange for gifts. The high court has confined the meaning of “official action” to include only formal exercises of power in official proceedings. It’s not clear that leaking to a reporter falls within this definition, although other federal laws may criminalize this conduct.

Criminal cases notwithstanding, unauthorized media contacts involving the exchange of gifts could serve as a basis for other administrative penalties, like reassignment, suspension or termination.

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