The Scope of “Official Act” under the United States Bribery

Abstract

In 2016, the United State Supreme Court in McDonnell v. United States decided how to interpret the definition of the term “official acts” under the federal bribery statute, 18 U.S.C. 201. The law defines the term “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.” The Court made a two-step analysis on the definition, and concluded: To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. Even though the Court held that setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) - without more - does not fit that definition of “official act,” the Court provided a room to prosecute a bribe taker if he did “something more” than such a mere meeting or event arrangement for a bribe giver. Applying the Court's limited interpretation on the term “official act,” a bribe taker can be convicted of bribery if he uses his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. This paper briefly checks bribery laws in the United States, and analyzes the Supreme Court's decision on McDonnell because the case may provide a reference how to set up a scope of official acts to charge public officials with bribery. Whether to limit or expand the scope of the “official acts” should be depending on how to adopt foreign reference rules on bribery to their own legal systems, especially which do not have a definition on “official acts” of bribery in their statutes.