[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
                    CLEAN-UP GOVERNMENT ACT OF 2011

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM, 

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 2572

                               __________

                             JULY 26, 2011

                               __________

                           Serial No. 112-70

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 DEBBIE WASSERMAN SCHULTZ, Florida
BEN QUAYLE, Arizona                  SHEILA JACKSON LEE, Texas
                                     MIKE QUIGLEY, Illinois

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JULY 26, 2011

                                                                   Page

                                THE BILL

H.R. 2572, the ``Clean-Up Government Act of 2011''...............     3

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........    22
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................    24

                               WITNESSES

Mary Patricia Brown, Deputy Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice
  Oral Testimony.................................................    26
  Prepared Statement.............................................    29
Lisa K. Griffin, Esq., Professor of Law, Duke University
  Oral Testimony.................................................    38
  Prepared Statement.............................................    41
Timothy P. O'Toole, Esq., Partner, Miller & Chevalier
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    21

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Post-Hearing Questions submitted to Mary Patricia 
  Brown, Deputy Assistant Attorney General, Criminal Division, 
  U.S. Department of Justice, from Ronald Weich, Assistant 
  Attorney General, Office of Legislative Affairs, U.S. 
  Department of Justice..........................................    83
Response to Post-Hearing Questions from Timothy P. O'Toole, Esq., 
  Partner, Miller & Chevalier....................................    87
Prepared Statement of Julie Stewart, President, Families Against 
  Mandatory Minimums (FAMM)......................................    92
Letter from Steven H. Cook, President, National Association of 
  Assistant United States Attorneys..............................    96


                    CLEAN-UP GOVERNMENT ACT OF 2011

                              ----------                              


                         TUESDAY, JULY 26, 2011

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Gohmert, Poe, 
Marino, Adams, Quayle, Scott, Conyers, Cohen, Jackson Lee, and 
Quigley.
    Staff present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk; 
(Minority) Bobby Vassar, Subcommittee Chief Counsel; Joe 
Graupensberger, Counsel; and Veronica Eligan, Professional 
Staff Member.
    Mr. Sensenbrenner. The Subcommittee will come to order. 
Without objection, the Chair will be authorized to recess the 
Subcommittee during votes today.
    The Chair recognizes himself for 5 minutes for an opening 
statement.
    On November 19, 1863, Abraham Lincoln delivered the 
Gettysburg Address. In dedicating a portion of the battlefield, 
President Lincoln said that the dead did not die in vain; that 
the Nation would have a new birth of freedom; and that 
government of the people, by the people, for the people shall 
not perish from the Earth.
    A government that is by the people and for the people is 
the very foundation of a democracy. If elected officials decide 
to pursue a course of greed, to profit from their positions, 
they betray the sacred trust and responsibility of the office, 
and weaken the very foundation of our democracy.
    While citizens may have differing views as to how much the 
government should be involved in their daily lives, and they 
may have differing opinions of their government and of their 
elected officials, every citizen has the right to expect an 
honest government.
    Ideally, an oath of office or the ballot box should be 
sufficient to hold public officials accountable to their 
constituents. But in reality, it is not.
    The criminal justice system, with its ability to 
investigate and prosecute public corruption and related frauds, 
is a necessary component to ensure an honest government. Our 
criminal justice system investigates and prosecutes public 
corruption and related frauds in order to ensure an honest 
government.
    The FBI identified the investigation of public corruption 
as a top priority and recognized that public corruption poses a 
fundamental threat to our national security and way of life. It 
impacts everything from how well our borders are secured and 
our neighborhoods protected to verdicts handed down in courts, 
to the quality of our roads, schools and other government 
services. And it takes a significant toll on our pocketbooks, 
wasting billions in tax dollars every year.
    Today's hearing examines the gaps in our Federal corruption 
laws that limit their effectiveness and allow corruption to 
persist.
    I and my colleague from Illinois, Mr. Quigley, introduced 
H.R. 2572, the ``Clean Up Government Act of 2011,'' to 
strengthen our public corruption laws. This bill restores tools 
that prosecutors had previously relied upon that have been 
eroded over the years by the courts. The bill also enhances 
other Federal statutes used to fight and deter public 
corruption. Additional penalties and more robust investigative 
techniques will ensure that public corruption and related 
offenses are addressed.
    A significant statute for prosecuting corruption was 
diluted as a result of the Supreme Court's decision in Skilling 
v. the United States. In this case, the Court held that the 
honest services fraud statute does not apply to prosecutions 
involving undisclosed self-dealing by a public official, but 
only to cases that involve traditional bribery or kickback 
schemes.
    Both types of honest services fraud prosecutions are 
equally essential to maintaining government integrity while 
ensuring that decisions made by public officials are made in 
the best interests of the people. Many instances of public 
corruption do not involve a classic bribery or extortion 
scenario, but, rather, public officials who exploit their 
positions and influence to benefit outside entities or 
individuals.
    Undisclosed self-dealing is not covered by any other area 
of Federal law. It is imperative that Congress restore the 
statute to its original intent. Although the Skilling decision 
seriously eroded the ability to prosecute both public officials 
and corporate officers for their undisclosed self-dealings, 
this bill restores the honest services fraud statute only as it 
relates to public officials.
    The bill also improves the government's ability to 
prosecute public officials who accept gifts because of their 
official position, and amends the definition of ``official 
act'' to include conduct that falls within the range of 
official duties of a public official. The bill extends the 
statute of limitations for serious public corruption offenses, 
increases the penalties for certain public corruption offenses, 
and gives investigators additional tools to address these 
related crimes in the form of additional wiretap and RICO 
predicates.
    There is bipartisan support from both houses for reforming 
our Federal public corruption laws, and this bill proposes 
commonsense and straightforward reforms to achieve this goal.
    The bill, H.R. 2572, follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________
    Mr. Sensenbrenner. And before recognizing the gentleman 
from Virginia, Mr. Scott, for his opening statement, let me ask 
unanimous consent to insert in the appropriate part of the 
record a letter from the FBI Agents Association and a letter 
from the Citizens for Responsibility and Ethics in Washington, 
or CREW for short, in support of this legislation.
    [The information referred to follows:]
    
    

                               __________
                               
                               
                               __________

    Mr. Sensenbrenner. And I now recognize the gentleman from 
Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman, and thank you for 
calling today's hearing.
    I welcome today's hearing about proposed changes in our 
laws against public corruption. Certainly the fight against 
public corruption is one of the most important functions of our 
Federal prosecutors.
    As we consider whether to modify the existing laws in this 
area, or whether to adopt new ones, I want to make sure we 
carefully examine these proposals.
    Before discussing the proposals to expand these laws, I 
want to caution that we should resist calls to increase 
statutory levels without specific evidence that current 
sentences are too low. The Justice Department's prepared 
statement supports increased penalties for public corruption 
offenses, but does not provide specific justification for 
raising the statutory maximums, in some cases, drastically.
    So while we may want to ask the U.S. Sentencing Commission 
to review the current sentencing guidelines for certain 
offenses and make changes if appropriate, we should not direct 
the commission to adjust sentences upward if, upon review, they 
calculate that it is not warranted.
    At least we know that the Sentencing Commission will study 
the need for sentences before acting, which is more than 
Congress usually does when we increase maximum levels.
    I will note, Mr. Chairman, that you do not require in your 
bill mandatory minimums, so intelligent, well-prepared, and 
well-reasoned sentences can be applied by the Sentencing 
Commission and judges. Even if the maximum sentence is 
increased significantly, or even unreasonably, intelligent 
sentences can still prevail.
    In regard to proposals to expand the public corruption 
laws, I note that there are a number of statutes on the books 
that Federal law enforcement uses to prosecute public 
corruption offenses, such as antibribery statutes, anti-
gratuity statutes, anti-extortion statutes, and the mail and 
wire fraud statutes. Mail and wire fraud statutes are already 
extremely broad and allow Federal authorities to pursue public 
corruption related to fraud or if someone uses a mail or wire 
communication to obtain money or property.
    Expanding these laws even further raises concerns that we 
are overcriminalizing behavior that is properly investigated by 
State authorities. When we broaden the terms of a criminal 
statute even just a little bit, with language which prohibits 
in generalities and not too specific, we invariably end up 
covering a range of conduct sometimes unforeseen, which may 
arguably be covered but we did not intend to cover.
    The vagueness stemming from lack of notice to the public as 
to about what specifically is prohibited is unfair, and it is 
our job to avoid it.
    This has been a problem with some well-intentioned statutes 
on the books dealing with various issues of bribery and public 
corruption. If a statute is too broad, reasonable people may 
disagree about how the statute should be applied, and sometimes 
it is applied in an overzealous and unfair way. The courts are 
left to sort out the mess, and we are called up to clarify the 
law.
    In many respects, that is what brought us here today. And 
the bill, in large part, is a response to several court cases 
which limited the scope of existing statutes.
    In the Cleveland case, the Supreme Court ruled that 
fraudulent schemes to obtain business licenses did not violate 
the mail fraud statute, because such licenses were not 
considered property; they did not obtain property or money. In 
response to this, the bill expands coverage to mail and wire 
fraud, to cover schemes to obtain anything of value.
    The Sun-Diamond Growers case, the Supreme Court ruled that 
prosecutors must prove a link between the gratuities and a 
specific act performed by the official accepting the 
gratuities. In response, this bill expands the anti-gratuity 
statute to those given because of an official's position, and 
not just because of an official act performed.
    In the Valdes case, the Court of Appeals for the D.C. 
Circuit ruled that the police officer who provided information 
about citizens from a police database to someone who paid him 
for the information was not criminally liable because his 
action was not deemed to be an official act. This bill would 
extend liability for receiving gratuities received for any act 
within the official's duties.
    And as you mentioned in the Skilling case, the Supreme 
Court held that the honest services fraud statute only applies 
to bribes and kickbacks and may not be used to prosecute other 
schemes. In response, the bill establishes a new crime of 
undisclosed self-dealing.
    We obviously need to address these cases, but if we act, I 
hope we will do so in a way that avoids problems that leads to 
courts having to step in to limit them.
    Today our witnesses will present opinions about whether or 
not we should update the laws. If there is reason to expand the 
coverage of some of these statutes, I want to make sure that we 
do so in a way that is not overbroad and gives clear notice to 
the public of the conduct which violates the statutes.
    If there are criticisms of the bill, we need to hear them, 
and we need the Justice Department to respond. And I hope that 
any criticisms will also be constructive, in that alternatives 
will be presented when possible.
    Thank you, Mr. Chairman. I look forward to the witnesses.
    Mr. Sensenbrenner. The Chair recognizes the Ranking Member 
of the full Committee, the gentleman from Michigan, Mr. 
Conyers?
    Mr. Conyers. Thank you, Chairman Sensenbrenner and 
Subcommittee Ranking Member Scott. I am happy to be here today 
to join you in this discussion.
    You would think that public corruption legislation would 
have been taken care of long before now, I mean all the public 
corruption cases we have. But my hat is off to Chairman 
Sensenbrenner, who works closely with me on civil rights cases; 
on the data retention bill; on the issue of Haiti, the poorest 
country in the Western Hemisphere; and Bobby Scott, with whom I 
work regularly.
    Now, there is only one problem with this bill, so we might 
as well get down to business on it, and that is it increases 
sentencing in at least five or six areas. And that has 
prevented me from cosponsoring the bill, and I am now more 
disposed to voting for this bill when it comes out of 
Committee.
    But we incarcerate more people, proportionately, than any 
country on Earth. So why in the world would I come here and 
vote to lengthen and toughen sentences? That is why Scott isn't 
on the bill, and he probably has even more and better reasons 
than I for not being a cosponsor.
    But that, I say to my good friend, the Chairman, is the 
problem that we have.
    Now, what is good about the bill? Well, the first thing is 
that Sensenbrenner and Quigley use some restraint in the 
extension of the statute of limitations for prosecuting certain 
public-corruption offenses. This bill originally sentenced from 
5 to 10 years; they lowered it from 5 to 6--they increased it 
from 5 to 6. That was a good thing.
    It is a good thing in this bill that we prohibit public 
officials from receiving bribes to perform any act within their 
official duties. Maybe you will explain to me why, on July of 
2011, we are proposing to prevent public officials from 
receiving bribes. I mean, is that saying that there is no law 
about that? That unless we do this, public officials can bribe 
and get away with it? Well, I don't think so.
    And then I think there is a good case to be made in the law 
that we expand the law to prohibit undisclosed self-dealing; 
that is, when a public official conceals material information, 
when their conduct or their acts would benefit their financial 
interests, and when the official has a duty to disclose it.
    I would like to work with Chairman Sensenbrenner and 
Ranking Member Scott on a statute that covers that particular 
area.
    And then, of course, I am always watching to make sure that 
the Department of Justice doesn't overreach too frequently. My 
history, my experience, tells me--am I over time?
    Mr. Sensenbrenner. You can----
    Mr. Conyers. I am getting there. The light isn't on. Oh, 
okay. All right. I get the message.
    Oh, now somebody turned the red light on.
    Mr. Sensenbrenner. It was the machine that did that. The 
yellow light isn't working.
    Mr. Conyers. Oh, I see.
    Okay, but let me just conclude by counseling my friends at 
DOJ, and I have lots of them, that they are always using the 
law to overrule or curtail a court's interpretation of the law, 
or to try to make the criminal law fit some unusual case that 
may be before them. And I wanted to give that friendly warning 
as well.
    Thank you for the additional time, if that is what you gave 
me, Chairman Sensenbrenner.
    Mr. Sensenbrenner. You are welcome, and it was.
    Let me say that the Chair is very willing to work with the 
gentleman from Michigan, the gentleman from Virginia, and 
others, because there have been some holes that have been blown 
into the public corruption statutes by the Court that need to 
be plugged, and the quicker, the better.
    It is now my pleasure to introduce today's witnesses.
    Mary Pat Brown has been with the U.S. Department of Justice 
since 2009, first acting as the acting counsel for the Office 
of Professional Responsibility. She currently serves as the 
Deputy Assistant Attorney General overseeing the Criminal 
Division's Public Integrity Section and the Office of 
Enforcement Operations.
    After law school, she worked as a litigation associate at 
the firm of Dickstein Shapiro until she joined the U.S. 
Attorneys' Office for the District of Columbia in 1989 as 
Assistant U.S. Attorney. She became a supervisor in 1997, 
serving first as the Deputy Chief of the Appellate Division in 
the Fraud and Public Corruption Section, and then as Executive 
Assistant U.S. Attorney for Operations, and, finally, as Chief 
of the Criminal Division.
    She received both her bachelor of science in Foreign 
Service and her juris doctor degrees from Georgetown 
University.
    Ms. Lisa Griffin has been professor of law at Duke 
University since 2008. She teaches courses on a variety of 
topics, such as criminal procedure, investigation, and 
evidence. Before coming to Duke University, she was a lecturer 
at the UCLA School of Law. And prior to her work as a 
professor, Ms. Griffin was an Assistant U.S. Attorney from 1999 
through 2004 in Chicago.
    After law school, she clerked for Judge Dorothy W. Nelson 
in the U.S. Court of Appeals for the Ninth Circuit and also for 
Justice Sandra Day O'Connor in the Supreme Court.
    She received her bachelor of arts and master of arts degree 
in Georgetown University, and her juris doctor degree at 
Stanford.
    Timothy O'Toole is a partner at Miller & Chevalier in 
Washington, D.C. Prior to joining Miller & Chevalier, he served 
as the chief of the Special Litigation Division of the Public 
Defenders Service for the District of Columbia, where he 
supervised and handled cases in local and Federal courts.
    He is also a former assistant Federal public defender in 
Las Vegas, Nevada. And he served as a member of the board of 
directors of the National Association of Criminal Defense 
Lawyers and co-Chair at large of the NACDL White Collar Crime 
Committee.
    He received both his bachelor of arts and juris doctor from 
the University of Virginia.
    Each of the witness statements will be entered into the 
record in its entirety.
    I will ask that each witness summarize his or her testimony 
to 5 minutes or less.
    And I recognize Ms. Brown.

  TESTIMONY OF MARY PATRICIA BROWN, DEPUTY ASSISTANT ATTORNEY 
     GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Ms. Brown. Mr. Chairman, Vice Chairman Ranking Member 
Scott, and distinguished Members of the Subcommittee, thank you 
for the opportunity to discuss the Department of Justice's 
efforts to combat public corruption and to speak to you about 
H.R. 2572, the ``Clean Up Government Act of 2011.''
    The Department strongly supports the bill, and we 
appreciate the Subcommittee's efforts to strengthen our ability 
to fight public corruption in all of its forms.
    Protecting the integrity of our government institutions is 
one of the highest priorities for the Department of Justice. 
Our citizens are entitled to know that their public servants 
are making decisions based upon the best interests of those 
they serve, not based on bribes, extortion, or hidden financial 
interests.
    Let me give you just a few examples of the Department's 
sustained efforts to prosecute public corruption in all its 
forms.
    Last month, the Department's Public Integrity Section began 
a trial of several Alabama State legislators, businessmen, and 
lobbyists for their roles in a wide-ranging conspiracy to buy 
and sell votes on pro-gambling legislation. They also recently 
obtained a jury conviction against a senator from Puerto Rico 
and a local business owner for engaging in a bribery scheme in 
which a lavish trip was given to the senator in exchange for 
his vote on certain pieces of legislation.
    As we all know, the U.S. Attorney's Office in Chicago 
recently convicted the State's former Governor on substantial 
public corruption charges.
    And right next door to us in Maryland, the U.S. Attorney's 
Office recently secured the conviction of former Prince 
George's County executive and others in connection with a 
scheme involving extortion and evidence tampering.
    Despite the Department's successes, we believe there are 
some gaps in our public corruption statutes that must be 
closed, and we thank the Subcommittee for its leadership on 
this issue. Let me mention some of the key elements of the 
bill.
    First, the bill would remedy problems that have arisen from 
judicial interpretations of the Federal bribery statutes. For 
example, right now a corrupt police officer who searches 
restricted law enforcement databases in exchange for money 
slipped to him under the table can act without fear of Federal 
prosecution. This bill ensures that this corrupt behavior falls 
within the meaning of ``official act'' in the statute.
    Likewise, under current law, a Federal public official may 
repeatedly accept, without fear of repercussions, lavish gifts 
such as plane tickets, sports tickets, expensive art objects, 
and cash that are given to him in a general effort to curry 
favor.
    Because of the Supreme Court's decision in Sun-Diamond, the 
government must prove that there is a direct link between a 
payment and a specific official act. This is almost, and often, 
impossible to establish a one-to-one link.
    The bill would ensure that public officials cannot cash in 
on their official positions. To be clear, this last category of 
payments does not, and never has, included lawful campaign 
contributions. Nor does it include de minimis gifts that are 
permitted by existing government rules and regulations.
    The bill would also allow government to use court-ordered 
wiretaps to gather evidence in cases involving Federal program 
bribery, theft of United States Government property, and major 
fraud against the United States. It would also make clear that 
these crimes can form predicate offenses under the RICO 
statute.
    The bill also would expand the statute of limitations for 
public corruption offenses. Public corruption allegations, by 
their very nature, may not surface until years after the crimes 
were committed. Expansion of the statute of limitations, even 
modestly, will help ensure that we are able to uncover and 
address the full extent of these schemes, and to address the 
corruption allegations fairly and thoroughly.
    Finally, the bill would fill the substantial gap left by 
the Supreme Court's decision last year in Skilling v. United 
States.
    For decades before Skilling, honest services fraud covered 
schemes involving bribes and kickbacks and hidden financial 
dealings. However, the Supreme Court held that the honest 
services fraud statute was vague, and limited it only to 
kickbacks and bribes. But not all public corruption is about 
bribes or kickbacks.
    If a mayor were to solicit tens of thousands of dollars in 
bribes in exchange for giving city contracts out to unqualified 
bidders, unquestionably that would be bribery. But if that same 
mayor wants to make even more money, he could instead secretly 
create his own company and funnel those same city contracts to 
his company.
    Although this second type of scheme is clearly corrupt and 
plainly undermines public confidence in the integrity of 
government, it can no longer be reached after Skilling.
    The Department of Justice is committed to prosecuting 
public corruption offenses at all levels of government, using 
all the tools available to us. We support the Subcommittee's 
effort to bolster the Department of Justice's ability to carry 
out this mission.
    Thank you for the opportunity to testify here today, and I 
would be pleased to take any questions.
    [The prepared statement of Ms. Brown follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Sensenbrenner. The time of the gentlewoman has expired.
    Ms. Griffin?

  TESTIMONY OF LISA K. GRIFFIN, ESQ., PROFESSOR OF LAW, DUKE 
                           UNIVERSITY

    Ms. Griffin. Chairman Sensenbrenner, Ranking Member Scott, 
Ranking Member Conyers, Members and staff of the Subcommittee, 
thank you for the opportunity to testify about the purpose and 
shape of public corruption prosecutions.
    The criminal statutes enforcing public integrity now fail 
to reach a significant group of cases in which public officials 
abuse their positions for personal gain.
    The Supreme Court's decision in Skilling v. United States 
limited prosecutions for honest services fraud to cases of 
bribes and kickbacks, and excluded concealed conflicts of 
interest from the reach of the fraud statutes. When it did so, 
it created a rare Federal criminal shortfall.
    Congress can act not only to close that gap, but also to 
clarify the scope of Federal enforcement and address problems 
of vagueness and over-breadth in the statutory scheme. Let me 
illustrate with some examples.
    Consider a public official who accepts a substantial and 
unreported sum of money with no particular strings attached, 
who is later moved to take action favorable to the benefactor; 
or an individual who takes advantage of public office to steer 
contracts to a company in which he has a concealed financial 
interest; or a politician seeking private-sector employment, 
who fails to disclose that connection, yet votes favorably on 
legislation that affects her prospective employer.
    These are all acts that would no longer fit within the 
statutory scheme or any other statute of which I am aware. Yet 
in each case, there is leverage over the public officials, 
self-interested deception, and hidden financial motivation 
every bit as corrosive as straightforward bribery.
    The harm of secret self-dealing is serious, because it 
distorts official action and detracts from the legitimacy of 
government. It deprives the public of neutral decisionmaking 
and of the information it needs to determine whether public 
officials are faithful agents. A conflict of interest provision 
focuses on the source of that harm, financial gain that is 
knowingly concealed from the public.
    Accordingly, I support the provisions of the proposed 
legislation that restore the government's ability to prosecute 
undisclosed conflicts of interest and also refine the 
definition of self-dealing. Overturning the restrictive 
interpretations of bribes and gratuities in United States v. 
Sun-Diamond, and expanding that concept to include benefits 
conferred because of official position, is one step toward 
closing the enforcement gap, but it does not address all of the 
scenarios I described.
    More importantly, I urge Congress to deal directly with the 
problem of undisclosed self-dealing. A freestanding conflict of 
interest offense modeled on the prohibitions in 18 U.S.C. 
Section 208 that govern Federal employees would accomplish 
that. Alternatively, I agree that the fraud enforcement scheme 
should be enlarged through the proposed Section 1346(a) to 
include self-enriching conduct by public officials.
    Overcriminalization is a real concern when confronting new 
or expanded Federal crimes, and it is critical for public 
officials to know the boundaries of the law. It should be clear 
what prosecutors must prove and what officials can and cannot 
do.
    This statute has the potential, though, to rein in 
prosecutorial overreaching. It does not reinstate the very 
spare terms of the former honest services provision, but rather 
makes an effort to be quite specific about the harm that 
justifies criminal sanction.
    First, tying the offense to a preexisting disclosure 
requirement under Federal, State, or local law addresses a 
major inconsistency in the application of the honest services 
provision pre-Skilling. That requirement, paired with an 
official act taken to benefit the concealed interest, protects 
against liability for unwitting deception.
    A defendant who knowingly conceals material financial 
information is aware that disclosure is mandated and acts with 
the requisite specific intent to defraud can hardly claim a 
failure of notice.
    I also believe it would be helpful to add an exemption for 
small benefits falling below a certain threshold. One of the 
reasons the Supreme Court was moved to curtail honest services 
fraud was that the statute could be read to reach ordinary and 
harmless exchanges. It might be prudent to take benefits like 
restaurant reservations and team jerseys off the table, to 
preempt that obvious criticism and ensure that the statute does 
not extend to de minimis interests in disclosure.
    If a public official is acting to benefit or further her 
own financial interests, then there is presumptively a breach 
of the public's trust. But the criminal sanctions should extend 
only to nontrivial harms, and therefore cover only those gains 
that could actually give rise to hidden incentives.
    Some of the ethics codes and disclosure obligations already 
folded into the proposed legislation would include such 
thresholds, but the statute might also establish a general 
Federal standard that provides a safe harbor.
    [The prepared statement of Ms. Griffin follows:]
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Sensenbrenner. The gentlewoman's time has expired. I 
grant you that the yellow light hasn't gone on. We have a 
mechanical aberration up here.
    Ms. Griffin. Thank you, Chairman Sensenbrenner.
    Mr. Sensenbrenner. Thank you.
    Mr. O'Toole?

            TESTIMONY OF TIMOTHY P. O'TOOLE, ESQ., 
                  PARTNER, MILLER & CHEVALIER

    Mr. O'Toole. Good morning. My name is Timothy O'Toole, and 
I am a practicing criminal defense lawyer at the law firm of 
Miller & Chevalier. I am appearing today on behalf of the 
National Association of Criminal Defense Lawyers.
    It is difficult to stand up and publicly announce myself as 
being opposed to something that has been named the ``Clean Up 
Government Act.'' Like you, I believe that public corruption is 
an insidious crime that undermines the public's trust in those 
who serve us.
    So let me be very plain, I am not here today to defend 
public corruption, nor am I recommending that you do so. But I 
am here today to remind the esteemed Members that we already 
have a very powerful set of over 20 Federal laws that punish 
those public officials who trade on their public office for 
private gain, just as we heard in some of the earlier 
statements.
    Twice over the past 2 years this Subcommittee came 
together, under the bipartisan leadership of Bobby Scott and 
Louie Gohmert, to learn about the problem of overcriminalizing 
conduct.
    Duplicative statutes, federalization of conduct 
traditionally belonging to the States, vague laws that can be 
applied to innocent conduct, excessive prison sentences, this 
is overcriminalization.
    My written testimony contains a discussion of exactly how 
H.R. 2572 would have such an effect, despite the well-meaning 
intentions that might have motivated its drafters.
    Specifically, the bill proposes to overrule three decisions 
in which the entire Supreme Court bench thought there would be 
dramatic and negative consequences to doing precisely what this 
bill proposes, and the bill would also substantially increase 
what are already decades-long sentence lengths.
    Section 2 would expand the conduct covered by Federal mail 
and wire fraud to cover false statements made in obtaining 
licenses issued by States and municipalities. Any 
misrepresentation on a Virginia marriage license, or a 
Wisconsin fishing license, or a license to sell a hotdog in 
Illinois, would suddenly serve as a basis for Federal 
prosecution.
    In Cleveland v. the United States, every member of the 
Supreme Court rejected such an application of the mail fraud 
statute, concluding it would dramatically intrude on areas 
properly regulated by State and local law. This attempt to 
overrule Cleveland is an example of overcriminalization and 
certainly has nothing to do with either public corruption or 
cleaning up government.
    Section 16 would create a Federal crime of undisclosed 
self-dealing by any public official. This decision, as we have 
heard, would overrule the Supreme Court's decision in the 
United States v. Skilling, in which every member of the Court 
agreed that this undisclosed self-dealing theory was 
unconstitutionally vague. In fact, the Court identified a host 
of questions that such a theory would need to answer in order 
to pass constitutional muster.
    And yet Section 16 leaves many of these same questions 
unanswered. The bill fails to define the significance of the 
conflicting financial interests. It fails to define the extent 
to which the official action has to further that interest. And 
it fails to explicitly define the scope of the disclosure duty.
    In addition, State and local jurisdictions often have their 
own extensive anticorruption laws, yet this bill allows the 
Federal Government to override the laws that locals have 
adopted to address the conduct of their own officials.
    Take the part-time citizen legislator in Texas who also 
owns a car dealership. Does this law apply to him when he votes 
on a State bill to increase highway funding, because better 
roads mean more people buying cars? It could, if the legislator 
does not disclose the interest, maybe because he cannot imagine 
that a disclosure rule applies to him, because everybody knows 
he owns the car dealership.
    The Federal prosecutors could pursue this charge even if 
the punishment for such nondisclosure would normally be 
administrative and the rule had never been construed to require 
disclosure like this one. Thus, if Section 16 becomes law, 
Federal prosecutors get to decide what Texas disclosure rules 
mean and get to bring one-size-fits-all prosecutions without 
any understanding of the jurisdictions in which these 
prosecutions are brought.
    Section 8 is a response to United States v. Sun-Diamond, in 
which the Supreme Court unanimously held that that the 
gratuities law could only be used to prosecute individuals who 
had given gifts based on their official acts. The proposed 
amendment adopts the government's losing position in Sun-
Diamond, criminalizing any gift given at any time to any public 
official in any situation where that gift was given as a result 
of the public official just being a public official.
    As the Supreme Court unanimously noted in Sun-Diamond, the 
broader provision urged by the government could result in the 
criminalization of many kinds of legitimate gifts, such as 
replica jerseys given to the President by championship teams.
    Section 6 seems to attempt to avoid this absurd result by 
permitting gifts that are expressly allowed under existing laws 
or regulation. But the vast network of administrative rules 
weren't written to serve that purpose, and the effect Section 6 
will actually have in preventing unfair prosecutions is 
unclear.
    Sections 4, 5, 6, and 12 substantially increase the maximum 
terms of imprisonment for certain offenses. Section 10, 
moreover, orders the Sentencing Commission to increase already 
high penalties for corruption offenses. But there is simply no 
evidence that the current lengthy statutory maximums and 
guidelines fail to provide adequate punishment and deterrence.
    Thank you for the opportunity to express NACDL's concerns. 
My written statement sets forth several other serious concerns 
we have about the bill, but which I did not have time to 
address with you this morning.
    We urge the Committee to consider the wide array of 
existing criminal laws that already prevent and punish public 
corruption before it acts further.
    [The prepared statement of Mr. O'Toole follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you very much. The gentleman's 
time has expired.
    The Chair will defer his round of questions until the end.
    And for the first 5 minutes of questioning, the Chair 
recognizes the gentlewoman from Florida, Ms. Adams.
    Mrs. Adams. Thank you, Mr. Chairman.
    Ms. Brown, you said something earlier, and I am confused, 
and I have listened to all three of you. You said that if a 
police officer searches a database, there is no way to 
prosecute him. However, there are NCIC rules and regulations in 
States, and local agencies will prosecute, is that not correct?
    Ms. Brown. For----
    Mrs. Adams. For using the database illegally. In other 
words, going in and getting information because, if I remember 
my days, and it has been a while since I have been a police 
officer, my training and my certification through NCIC, there 
was prosecution available if you abuse that system, correct?
    Ms. Brown. There may be prosecution or administrative 
remedies when a police officer or law enforcement officer 
abuses that privilege, but in this way, the police officer and 
the person who is doing the bribing can be brought together 
under one statute and prosecuted for it.
    So I don't know what the State law is in Florida, but I do 
know here, in the District of Columbia, where I work with the 
Metropolitan Police Department and with the U.S. Attorney's 
Office, we would have brought that matter in Federal court, and 
we did in that particular case.
    Mrs. Adams. Okay. Well, I just wanted to make sure that I 
was remembering correctly, and it is possible things have 
changed since I was a police officer.
    Ms. Griffin, from your perspective, what if anything is not 
being prosecuted that should be?
    Ms. Griffin. I think the cases of undisclosed self-dealing 
that both Ms. Brown and I described. Probably the most serious 
offense is the example given of a public official who steers 
public contracts into a company in which that official has an 
interest. I am not aware of a Federal statute that currently 
would criminalize that conduct, and I believe that this 
legislation closes that gap.
    Mrs. Adams. Is that the only thing that you can think of 
that wasn't already covered currently?
    Ms. Griffin. Other varieties as well. One aspect of it 
would be closed in terms of the gap by another part of the 
proposed legislation, and that is the retainer theory of 
bribery, or a stream of benefits conferred on a public official 
with no immediate strings attached that later produces a stream 
of favors. That theory is currently not accessible to Federal 
prosecutors, because of Sun-Diamond and Skilling. This statute 
remedies that either through overturning the limitation on 
bribes and gratuities in Sun-Diamond or, more broadly, 
criminalizing undisclosed self-dealing.
    And then of course there is the example of an official who 
is seeking employment in the private sector subsequent to 
public service who acts to benefit the potential employer and 
has not disclosed the future interest in that employment.
    Mrs. Adams. Well, what about the part-time legislator who 
owns the car dealership? Is this language vague enough that 
they could be pulled in, based on the comments that Mr. O'Toole 
said?
    Ms. Griffin. I actually do not believe that a legislator 
whose interests in a car dealership is known to constituents 
would be criminalized.
    There are two important elements to the new or renewed 
provision in the statute. One is to tie it to actual disclosure 
requirements that have not been met, so we are talking about, 
let's say, a mayor of a small town who works part time and also 
happens to own the car dealership. If everyone is aware of that 
interest in the car dealership, then I don't believe there is 
corruption, if voters can assess whether that mayor is a 
faithful public agent when making decisions that might affect 
the car dealership.
    Mrs. Adams. Mr. O'Toole said something different. What he 
said was, as a car dealership owner, a part-time legislator 
votes on a transportation bill, could it be construed as not 
disclosing and, therefore, cause this person to be charged, 
even though there was really no intent to violate the law?
    Because I know a lot of States, a lot of localities, have 
their own corruption laws, and he may have complied to those 
requirements but may not have realized, based on the Federal 
law, could he then be charged?
    Ms. Griffin. As I read the provision, the mental state 
standards are quite stringent. The official would need to know 
of the mandatory disclosure of the interests, knowingly fail to 
disclose that interest, and then act as well with the specific 
intent to further his or her own personal financial interests 
and conceal that from the public.
    I think by combining each of those steps with the strict 
mental state requirement actually does go quite a long way 
toward preventing prosecutorial overreaching.
    Mrs. Adams. Ms. Brown, you look like you wanted to answer.
    Ms. Brown. Yes, I do. Thank you so much.
    I want to emphasize that this is not like the citizen 
legislator, because for the exact same reasons. It is all about 
transparency, these public corruption laws. The voters need to 
know what their public officials are doing.
    Mrs. Adams. Agreed.
    Ms. Brown. In this case, under this statute, you must show 
that he knew it, he intended to violate it, he kept it secret. 
The car dealership analogy just doesn't fit.
    Mrs. Adams. Thank you.
    Mr. Sensenbrenner. The gentlewoman's time is expired.
    The gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Thank you, Mr. Chairman, and Mr. Scott, for 
allowing me to precede you both.
    I wanted to commend all of the witnesses. First, I want the 
representative of the Department of Justice to know that I 
appreciate her career in DOJ and being here today.
    And, of course, Attorney Griffin, you did a great job. I 
think you have raised some very good points.
    But the consideration that I am raising to Chairman 
Sensenbrenner is the comments of Attorney O'Toole.
    Now, I didn't hear anybody refute the fact that we may be 
overcriminalizing this whole area.
    Does anybody contradict his assertion that the way this 
bill is written, a mistake on a marriage license or the seeking 
of a fishing permit would make you subject to the law?
    Ms. Brown. I would be happy to answer that.
    Mr. Conyers. All right, please do.
    Ms. Brown. Thank you.
    This honest services fraud statute was never intended, and 
never covered in the past, someone who gets a fishing license 
in the State of Texas, or operates the local hotdog stand.
    Again, one must show that the misrepresentation on that was 
intentional. It was intended to defraud. It was intended to be 
kept secret.
    Those stringent things do not cover those sort of 
situations and never have.
    It is all about public officials taking actions in secret 
for their own financial gain, so the average citizen who goes 
and gets a fishing license is not a public official hiding 
something on the fishing license for personal gain.
    Mr. Conyers. Okay.
    O'Toole is talking about the Cleveland case, and you are 
talking about the Skilling case, right?
    What do you say, Counsel O'Toole?
    Mr. O'Toole. Yes, my testimony was directed toward Section 
2, which is the provision of the bill which would overrule the 
Cleveland case by defining an application for a license as a 
form of property that would be subject to the fraud laws. And 
then the Cleveland case was specifically about a 
misrepresentation on a gambling license, and there is no reason 
that this definition wouldn't apply to the sorts of licenses 
that I had in my testimony.
    It is not about the undisclosed conflict of interest 
theory, which I think has other problems, but that was not one 
of them.
    Ms. Brown. If Professor Griffin wants to jump in here about 
the Cleveland case, I am happy to defer to her, but my response 
to that stands. You can't read the Cleveland case without 
reading the Skilling case and Sun-Diamond.
    And I don't want to repeat myself, but it goes back to the 
issue of it is undisclosed self-dealing by a public official 
who intends to do that.
    So an honest mistake on any type of license is not going to 
be covered by the statute, and it never has been.
    Now, we are not overcriminalizing or overfederalizing, 
because this legislation really is to fill gaps that have been 
created over the course of judicial interpretation.
    As I mentioned, judicial interpretation of the bribery 
statutes in the Skilling decision--the Skilling decision was 
very careful when it said absolutely does the legislator, does 
Congress, have to be careful in how this fix is made. And we 
agree with that. But it didn't say there is no possible fix 
available.
    That is why the Department of Justice is happy to work with 
the Subcommittee to make it fit, back to the way it was 20 
years ago.
    Mr. Conyers. You are pretty persuasive.
    Now, Chairman Sensenbrenner, would it meet with your 
approval that your staff and mine continue working on this 
important bill that you and Judge Louie Gohmert and Quigley all 
participated in, so that--I am moving more to a supportive 
position and----
    Mr. Sensenbrenner. Will the gentleman yield?
    Mr. Conyers. Yes.
    Mr. Sensenbrenner. The gentleman knows that my door is 
always open. It has been in the past. You haven't made me mad 
enough to slam it yet. [Laughter.]
    Mr. Conyers. Well, yeah, but we come pretty close to it 
sometimes. [Laughter.]
    But at any rate, I appreciate your response, and I will 
continue to work with it.
    And I'd like to bring the former Chairman of the 
Subcommittee on Crime in on this too, because, you know, let's 
face it, he's got some reservations and we would like 
Sensenbrenner's name to get on another bill here, if we can, 
during this session of Congress.
    Mr. Sensenbrenner. Well, with the caveat that Senator 
Durbin said negotiating with me is like eating somebody for 
lunch and spitting out the bones, I will be happy to negotiate 
with you. [Laughter.]
    Mr. Conyers. Thank you. I yield back my time.
    Mr. Sensenbrenner. The gentleman from Texas, the Vice-
Chairman of the Committee, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I am trying to muddle my way through the legislation. I 
didn't participate in the preparation of it, so I am just 
trying to understand some of these things.
    But, Ms. Brown, you had mentioned that when someone 
searches a crime data for money, and they cannot be federally 
prosecuted, that that is a problem. You are not saying there 
are not State laws against doing such a thing, are you?
    Ms. Brown. Sometimes there are State laws. In the District 
of Columbia, we----
    Mr. Gohmert. But if they are not, then you feel the Federal 
Government needs the use of that power and jump in for the 
States?
    Ms. Brown. That is one reason. The other reason----
    Mr. Gohmert. Would you feel the same way if a State didn't 
have a burglary statute, that then we would need to federalize 
burglary and make it a Federal crime if the States chose not 
to?
    Ms. Brown. No. What I think that is appropriate is that 
there are Federal statutes and State statutes that cover the 
same thing----
    Mr. Gohmert. Well, let me ask you, do you think the 
language that says inserting, quote, ``anything or things of 
value,'' unquote, is a T-shirt a thing of value, or a baseball 
cap? Would those be things of value?
    Ms. Brown. Well, that is where the State and local 
regulations do come in, Congressman, because----
    Mr. Gohmert. So if they don't have a de minimis exception 
in State or local regulations, then that would be something of 
value, correct?
    Ms. Brown. It is not a matter of whether it is a de 
minimis. It is a matter of transparency and reporting.
    Mr. Gohmert. Right. And I am familiar with the fact that 
the public normally assumes, if someone is a legislator in a 
State or Federal legislature, the public just kind of presumes 
that since they make the law, they surely must know them, and 
the presumption normally goes against a legislator.
    Because I am thinking you had pointed out that a legislator 
must know of disclosure requirements, but if the evidence shows 
that someone is a member of the legislature and didn't disclose 
something, then usually the public will say, well, he surely 
knew, he makes the laws.
    But I want to get to something else.
    You, Mr. O'Toole, mentioned one example, but here on page 
14 of the bill, where it defines undisclosed self-dealing: A 
public official performs an official act for the purpose in 
whole or in material part of furthering or benefitting a 
financial interest of.
    And then I come down, and like you all talked about, it 
involves self-interest: The public official; the spouse; a 
minor child; a general business partner of a public official; a 
business or organization in which the public official serves as 
an employee, officer or director, trustee, or general partner.
    So if a Member of Congress, Mr. O'Toole, were a director of 
a charitable organization, and I understand there are a lot of 
Members of Congress that are, and he were to commit the 
official act of cosponsoring or voting for a charitable 
donation to be deductible, do you have any concerns that that 
might be subject to meeting this definition of a corrupt act?
    Mr. O'Toole. I do. I think this is part of the problem that 
I described before, which is that the law doesn't describe the 
significance of the financial interest, which is what the 
Supreme Court said must be defined. And so here there may be 
some----
    Mr. Gohmert. Wouldn't it be clear in that situation that 
charitable organization would definitely benefit, and benefit 
in a financial way, correct?
    Mr. O'Toole. That is correct.
    Mr. Gohmert. There is no doubt, right?
    Mr. O'Toole. Right. And so, since this law defines any 
benefit, I certainly think that a creative prosecutor could 
easily look at this and find it covered by the law.
    And I am not even sure it takes a creative prosecutor, 
because I do think the plain language of the law, as you point 
out, does cover exactly the sort of conflict of interest 
situation where someone is----
    Mr. Gohmert. Do you think that is a conflict of interest? 
That if you think, in your heart, that a charitable institution 
should be able to have donors deduct, that that is good for the 
overall benefit of the entire country, that even though that 
benefits one--he's a director, or she's a director on that, 
that that is corrupt?
    Mr. O'Toole. Absolutely not corrupt. I think that that is 
part of the problem, is that this law would criminalize 
ordinary conduct that the average, everyday person would 
recognize is not corrupt, and is an important and completely 
legitimate part of the way that our government does business.
    Mr. Gohmert. Well, it sounds like, then, as long as the 
prosecutors are not ever upset with a legislator, there 
shouldn't be any problem.
    Mr. O'Toole. And I am sure that never happens.
    Mr. Gohmert. Okay, thank you.
    I yield back.
    Mr. Sensenbrenner. Mr. O'Toole, do you want to qualify 
that, before I say that Mr. Gohmert's time is up?
    Mr. O'Toole. Qualify?
    Mr. Sensenbrenner. That it never happens.
    Mr. O'Toole. I will----
    Mr. Sensenbrenner. I think all of us on the Committee know 
it has.
    Mr. O'Toole. And I'd say, I guess I should qualify by 
saying I hope it never happens.
    Mr. Sensenbrenner. Conceded. Without objection, the 
gentleman may revise and extend his remarks.
    I am happy to announce that the yellow light is now 
working, and recognize the gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, obviously we need to make some changes. But 
as I said, we need to be careful about what we do.
    And I wanted to ask, we have gone back and forth on this 
business license thing, where if a guy lied and got a business 
license, if he lied and committed fraud to get the business 
license unbeknownst to the agency or any official, does this 
law address that?
    Ms. Brown. The honest services fraud addresses, as do the 
mail and wire fraud statutes, always involve a specific intent 
to defraud, regardless of the property at issue.
    Mr. Scott. Wait a minute. If the business license is 
obtained by fraud, lying on the form, and you got your business 
license, that is obviously something of value. But it was 
unbeknownst--if you bribe the official to get it, colluded with 
the official, that is easy.
    Ms. Brown. Yes.
    Mr. Scott. Is the person who lied on the form guilty for 
having illegally obtained a business license, because he did it 
by lying and fraudulent activity?
    Ms. Brown. If he intended to commit that, yes.
    Mr. Scott. Right. Does this bill cover that?
    Ms. Brown. Yes.
    Mr. Scott. And the person who obtained the license by fraud 
would be guilty?
    Ms. Brown. If he had the specific intent.
    Mr. Scott. Right, he lied. He straight up lied.
    Ms. Brown. Well, there is a lie and then there is----
    Mr. Scott. He lied. He fraudulently----
    Ms. Brown. Yes, then this bill covers that.
    Mr. Scott. Now, why wouldn't that same--and we went to the 
fishing license, why wouldn't the person, the individual lying 
on a fishing license, be in the same boat?
    Ms. Brown. Is the person applying for the fishing license a 
public official?
    Mr. Scott. No. The person getting a business license wasn't 
a public official.
    Ms. Brown. Yes. It has to be a public official.
    Mr. Scott. Okay, you didn't say that. If an individual, not 
a public official, lied to get a business license----
    Ms. Brown. I am not bringing that case in Federal court.
    Mr. Scott. Well, I am not sure--that is you. Does this bill 
cover it?
    Ms. Brown. No.
    Mr. Scott. Okay.
    Ms. Griffin. I think that there is a provision of the bill 
which would enlarge the definition of money and property in 
Sections 1341 and 1343, and thereby extend the definition of 
mail and wire fraud. And it would include within the definition 
of property licenses as a thing of value, as property.
    That is a separate provision from the ones that have been 
the primary----
    Mr. Scott. Well, let's back up a step.
    If you lie and mail the application in on a form, you are 
not a public official, you lied to get your business license, 
does this legislation cover that individual? Now Ms. Brown said 
no.
    Ms. Brown. That would be mail fraud. That would be under 
1343.
    Mr. Scott. So the bill would cover that, so if you mail in 
the application, if you mail in your fishing license, you are 
now covered?
    Ms. Brown. If you are a public official----
    Mr. Scott. No, wait a minute. Wait a minute. You are going 
back to----
    Ms. Brown. You want a private citizen?
    Mr. Scott. A private citizen----
    Ms. Brown. Sure. A private citizen----
    Mr. Scott [continuing]. Mails in the fraudulent license. 
That is wire fraud.
    Ms. Brown. That is mail fraud.
    Mr. Scott. And if we change it under this bill, and now we 
are covering that situation, the fishing license?
    Ms. Brown. This bill does not cover private individuals. It 
covers public officials.
    Mr. Scott. Okay, but Ms. Griffin said you just did cover 
the private official, because he mailed it in.
    Now is a private official covered under this legislation? 
Is he now at risk? He's not at risk now, would he be at risk if 
we changed this for lying on the fishing license?
    Ms. Griffin. It is a separate section of the bill. It has 
not been the subject of our testimony or the thrust of most of 
the discussion today.
    There is a section of the proposed legislation that 
separately makes a change. That refers back to the earlier 
discussion----
    Mr. Scott. So, well, maybe you can respond in writing, 
since I am having trouble, I don't want to use my 5 minutes on 
a simple question: Is a fishing license covered or not?
    Mr. O'Toole. If I could try to clarify this? Section 2 of 
the bill does expand Section 1341 and Section 1343, which I 
believe Professor Griffin will confirm applies to private 
individuals. Those are the mail and wire fraud----
    Mr. Scott. So if you mail in your fishing license, two out 
of three think it is covered?
    Ms. Brown. No, I agree with that. I said that mail fraud--
--
    Mr. Scott. Okay, so the fishing license is covered now?
    Ms. Brown. Under mail fraud.
    Mr. Scott. Under the bill.
    Ms. Brown. Under the bill, under the honest services fraud, 
it could, as in the Skilling case. In the Skilling case----
    Mr. Scott. Well, wait a minute. That is a simple yes or no 
question, and I'd like to ask another question----
    Ms. Brown. Then I will answer yes.
    Mr. Scott. And you answered no to begin with, and now it is 
yes.
    Ms. Brown. I am saying, yes, but----
    Mr. Scott. Thank you.
    There is a difference between bribes and gratuity. Under 
the bribes section, the bill reduces the threshold for a bribe 
from $5,000 to $1,000. But the gratuities section, as we have 
noted, covers any kind of gratuity.
    There are no exceptions for the gratuities? We talked about 
baseball caps and T-shirts. What about written material?
    Ms. Brown. I am sorry, what about written?
    Mr. Scott. Written material. If a lobbyist comes in with 
research that cost him $1,000 to put together, he gives it to 
me to support his position on a bill, is that a gift?
    Ms. Brown. No.
    Mr. Scott. Why?
    Ms. Brown. Because he's lobbying. It is not a gift. A gift 
is something that is given personally to an individual.
    And the ones we were talking about in the statute, the ones 
that were involved in Sun-Diamond, were things like tickets to 
the World Series, free plane tickets, cut-crystal balls, 
artwork.
    Mr. Scott. Well, I mean, I know what's covered, but what 
else is covered?
    Ms. Brown. Things like that.
    Mr. Scott. But written material is not, and there is no 
written exception to it?
    Ms. Brown. No.
    Mr. O'Toole. I actually would disagree. I think, based on 
the broad language of the statute, if it is anything of value, 
which I think written material would clearly be, and it is 
given because of your official position under this bill, which 
it would be, because it would be given to you as a congressman, 
it would seem to clearly be governed by the new gratuities law 
of the bill.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Illinois, Mr. Quigley?
    Mr. Quigley. Thank you, Mr. Chairman, and thank you for 
your efforts on this legislation.
    Mr. O'Toole, forgive me, let me ask you a question. What 
did one Illinois prisoner say to the other Illinois prisoner?
    Mr. O'Toole. I have no idea.
    Mr. Quigley. The food was better here when you were 
Governor.
    I mention that for a reason. I am from Illinois, and I know 
the association you work for, and I suppose I am a traitor to 
the cause, because I was a criminal defense attorney for 10 
years at 26th Street, so I get what you are getting to.
    But I hear those jokes all the time, right? Hunting for 
corruption in Illinois is like hunting for cows.
    So we have to recognize that the public is strongly 
desirous of getting something done. And so what I am getting to 
with you is, you and your association may be uniquely suited to 
help us clear up that which you have concerns about.
    So what I am asking you, and I would mention to Ms. Brown, 
is what I hear most concerns about with this legislation are 
making sure it is not vague, that we don't repeat the same 
mistakes. And the questions today seem to evoke those same 
concerns, some sense of uniformity of what is de minimis.
    And I know transparency is first and foremost. But from 
transparency there appears to be a need for some uniformity in 
what is disclosed.
    I remember a colleague of mine at the county. They showed 
her disclosure statement as a county elected official and what 
she had to disclose, and then when she ran for senate, what she 
had to disclose. And it was a whole different game.
    And across this country, it is extraordinary the difference 
of what elected officials have to disclose, and what that means 
for transparency.
    And wouldn't you agree that those aspects of uniformity are 
critical to having the public's trust that they know what's 
happening and that the prosecution is on an equal playing 
field?
    Ms. Brown. Yes, I do. But one of the things I wanted to 
emphasize in response to that remark, Congressman, is that one 
of the things we have to be careful about is making sure that 
the public official knows what needs to be reported and knows 
what is illegal.
    But each State, each legislature, each local community, and 
the Federal Government agencies and Congress, you are right, 
has different disclosure forms.
    But at least the way that this bill is designed is that 
those disclosure obligations are linked to what is required. So 
when you take your ethics course at your new employer, or when 
you become a State legislator, presumably you are advised of 
those things.
    But you are right, it is certainly a problem that there are 
all different kinds of reporting requirements.
    Mr. Quigley. There is no way to help, in this legislation, 
protect those that you are prosecuting, and also give the 
American public a sense of what is being done uniformly across 
the country?
    Ms. Brown. Well, I think that the first instance is there 
is a specific reporting requirement under law and that has been 
violated. Then the public will know that has been violated.
    There was a reporting requirement--I mean, your average 
citizen doesn't go online to see the financial disclosure forms 
for people who are running for public office, or who are public 
employees.
    Mr. Quigley. Yes, but the editorial boards do, and others--
--
    Ms. Brown. Right.
    Mr. Quigley [continuing]. That will help trumpet this and 
get it out there.
    Ms. Brown. Right.
    Mr. Quigley. It makes it easier. And it is part of the same 
sense of continuity.
    Mr. O'Toole, you talked about the auto dealer. Is it the 
uniformity of what is private interest versus public interest? 
And obviously in the example you gave, the fact of the matter 
is, and what seems to be the dividing line in our ethics rules, 
is that, you know, you may be or have friends who are auto 
dealers, but improving all the roads helps everyone.
    So while it may help you, but it is also helping many 
others, and that seems to be the dividing line.
    Don't you see an opportunity to create sharper lines and 
prevent problems with court enforcement?
    Mr. O'Toole. Well, I think the sharper lines are important. 
And I think that with that example, I was trying to point out a 
problem with the lack of sharp lines that are in the current 
bill. Because I think the language of the bill would include 
the State legislator who owns a car dealership as someone who 
is taking action to benefit themselves.
    I know that my colleagues here pointed out the other 
reasons that they think that that legislator wouldn't be 
prosecuted. But I think the bill is very clear that that sort 
of interest, even though I think you and I may well agree that 
it is not something that the public would call a conflict of 
interest, would be classified as a conflict of interest under 
this bill.
    Mr. Quigley. I am sorry. Go ahead.
    Ms. Griffin. I think precisely because motivations can be 
difficult to disentangle, in terms of the difference between 
the public and the private, that a focus on private financial 
gain at a certain level is important.
    I mean, I agree with you, and I think the thrust of your 
question is, can there be clarity in this legislation----
    Mr. Quigley. Yes.
    Ms. Griffin [continuing]. Over and above the clarity that 
comes from State and local disclosure laws?
    And I think it is something to consider, that I think is 
important, whether there might be a general Federal safe harbor 
for things that are insignificant, because we are looking for 
those motivations that give rise to distorted decisionmaking. 
And very minor benefits, like the team jerseys, and the 
restaurant reservations, and some of the things in the parade 
of horribles that have not actually been prosecuted, but 
certainly get mentioned in a lot of pieces and commentary, 
could be taken off the table with a general Federal safe 
harbor.
    Mr. Quigley. Mr. Chairman, thank you for the extended time.
    I appreciate your efforts on this bill. I apologize for the 
weak attempt at humor, but unfortunately there is more jokes 
about Illinois corruption than we have time for.
    You know, I will be here all week. [Laughter.]
    Mr. Sensenbrenner. Well, the Chair recognizes himself for 5 
minutes to say that usually the retirement home for Illinois 
Governors is in Wisconsin, in Adams County, in particular.
    That is where one of them is and one of them may be going.
    I want to get some clarification. I agree with both what 
Mr. Scott and Mr. Quigley have been saying relative that there 
be need for clarification.
    Ms. Brown, you talked about having a secret arrangement as 
one of the predicates for this crime. Congress and most state 
legislators have to file financial disclosure statements, which 
are public. Does that completely blow apart the secrecy 
business, if you disclose that you are a car dealer and you 
still take some type of gratuity?
    Ms. Brown. Yes.
    Mr. Sensenbrenner. It does? Okay.
    Ms. Brown. Yes, it does, because it lets the public know.
    Mr. Sensenbrenner. Okay.
    Now we all know that a state legislator who owns a car 
dealership can vote for more money for roads. We have gone 
through that. What about if the legislation before the general 
assembly talks about changing the laws for disputes between car 
dealerships and the manufacturer from a judicial remedy to an 
arbitration remedy, which applies specifically to car 
dealerships as a class, and he does not recuse himself. Would 
that be a violation, if he voted in favor of that legislation?
    Ms. Brown. Not if he had disclosed it on his form. I think 
in those circumstances he would do well to recuse himself from 
being part of that legislation, because the interests are so 
closely related.
    Mr. Sensenbrenner. Now let me talk about de minimis 
exceptions. I think we have gone through the T-shirt example 
issue as de minimis, and maybe written material, which I assume 
would be a coffee table book that would talk about the 
wonderful things that a specific industry does. But how about a 
volunteer fire department awarding a legislator or a Member of 
Congress a coat with that legislator's name embroidered on it, 
and the coat would probably cost a couple hundred dollars?
    Ms. Brown. To me, it depends upon the reporting requirement 
for that particular Member of Congress. If the rules and 
regulations under which that congressmen or State legislator 
operates permits that--for example, I am allowed to have a 
friend take me to lunch, so long as it is less than $20--if 
those regulations allow it, he certainly could keep it.
    And he reports it. That is the other thing. I could go on 
something that is more expensive than that, but I have to 
report it.
    And so it is all, again, it is all about the transparency. 
Can he keep it? Sure, but he has to report it
    Mr. Sensenbrenner. Well, I think that this was in the 
instance involving one Member of Congress after the definition 
of gift or gratuity was changed here, where the Member of 
Congress didn't know that he or she was going to get this 
embroidered jacket. And there was such a question about it, 
that everybody ended up getting embarrassed when the fire chief 
presented her with the jacket and said it is illegal for me to 
take that in front of a whole crowd of people.
    Are we setting up traps where people can end up 
embarrassing themselves?
    Ms. Brown. I think these, particularly the honest services 
fraud statute, is not a trap for the unwary. In these 
circumstances when we have been talking about, you don't know--
--
    Mr. Sensenbrenner. We are talking about the gratuity 
statute here.
    Ms. Brown. Oh, well, the gratuity statute certainly. If 
there are reporting requirements--excuse me, I thought we were 
talking about the honest services fraud. Forgive me.
    But again, it is all about the reporting requirements. And 
if that is reported as a gift and on the forms, as opposed to--
and the other thing is, you have to think about, is it 
something that is going to go in someone's office, that is 
going to go on the wall for everybody to see when the 
citizens----
    Mr. Sensenbrenner. A $200 volunteer fire department jacket, 
that would be pretty tough to hang on the wall of one of our 
offices.
    Ms. Brown. We have fire hats all over the place in the 
department.
    Mr. Sensenbrenner. I am not talking about hats.
    Ms. Brown. No, no, I know--I am not being frivolous. I am 
just saying that if it is reported, if it is not secret, 
personal gain in exchange for a favor, if it is not a thank you 
under the gratuity statute, or a quid pro quo under the bribery 
statute, then it is fine to be able to receive that.
    Then you move into different things about conflict of 
interest and reporting requirements and things like that. But 
under gratuities and bribery, if there is no link between 
secret dealing between the legislator and the volunteer fire 
department, then it is not going to be----
    Mr. Scott. Mr. Chairman, I ask unanimous consent that you 
be given an additional minute to follow through on this.
    Mr. Sensenbrenner. Without objection.
    Mr. Scott. And because----
    Mr. Sensenbrenner. I yield to the gentleman from Virginia.
    Mr. Scott. And because the question on the gratuity statute 
is just a gratuity. You are given a particular gift because of 
your position. And this fire jacket is given to you because of 
your official position. There is no disclosure requirement. 
There is no disclosure connection on that section. It is a 
violation.
    Ms. Brown. What is it for, is the real question.
    Mr. Scott. No, the gratuity--that is the bribery section, 
``What is it for?'' The gratuity section is that you got a gift 
because of your position.
    Mr. Sensenbrenner. Well, my time has expired.
    I guess I would make the observation that I am the author 
of this bill with Mr. Quigley of Illinois. You know what I can 
say is that the whole purpose of this bill is to try to have 
very clear definitions, so that public officials know what is a 
violation and what isn't. And I am afraid that the testimony on 
the part of all three of our witnesses today indicate that 
there isn't any agreement on what is a violation and what 
isn't.
    We have got to update the statute, as a result of a couple 
court decisions. But when we do the updating of the statute, I 
hope that we will be able to put this issue to rest, so that 
everybody, including the courts, knows what is inbounds and 
what is out-of-bounds.
    So this bill needs quite a bit of work, and as I told the 
gentleman from Michigan, Mr. Conyers, we are going to have to 
work on this, and I hope to get some constructive input from 
the Justice Department.
    The gentleman from Tennessee, Mr. Cohen?
    Mr. Cohen. Thank you, Mr. Sensenbrenner.
    I understand and certainly appreciate and favor, and always 
have, trying to make laws as specific as possible.
    But what has been thrown up here by Mr. O'Toole about a 
marriage license or a fishing license, and you mentioned a 
jersey, the honest services statute has been on the books for 
how many years?
    Ms. Brown. Twenty.
    Mr. Cohen. Twenty. How many times has it ever been used for 
somebody that got a jersey or restaurant reservations or any of 
these other innocuous, de minimis things that you all have 
thrown out here, that now seems to be a problem with the law?
    Ms. Brown. I don't have those----
    Mr. Cohen. Do you know of any times it has ever been used 
for something like that?
    Ms. Brown. I don't. But I can't----
    Mr. Cohen. Mr. O'Toole, do you know of any times that a 
wedding license, a fishing license, a jersey has been the basis 
of a prosecution in a Federal court?
    Mr. O'Toole. Well, it cannot currently be. Under the 
Cleveland decision, the fraud laws do not apply to State and 
local applications. That is the holding of Cleveland.
    And so currently, the Federal statutes cannot apply to 
that. This change would allow that. And so I know of none, 
because the law currently doesn't apply to----
    Mr. Cohen. But under honest services, which is Skilling, 
right?
    Mr. O'Toole. Yes.
    Mr. Cohen. That anything that you do that gets some public, 
you get some benefit for yourself--and Ms. Griffin, Professor 
Griffin, talked about having a big business, and you are 
shuffling contracts, you could have a small business and 
shuffle a jersey over there.
    But that has never happened, has it, Professor Griffin?
    Ms. Griffin. Well, there are examples of cases in which 
prosecutors brought charges under the former honest services 
provision, where it is difficult to identify the harm, where we 
are not just talking about an intangible harm, but an 
insubstantial harm.
    I think one of the better examples is the Thompson case 
from the Seventh Circuit, where an official acted in a way that 
the prosecutors construed as intended to impress her 
supervisors. She received a salary bonus because she directed 
some contracts toward approved contractors who were favored for 
political reasons by her supervisors. But she did not gain 
financially in any direct way from that. And the only benefit 
that could be articulated that she received was institutional 
benefit of pleasing her supervisors. And that is literally the 
way it was articulated by prosecutors.
    And her conviction was reversed. And it is one of the cases 
that is often cited as abusive under the former honest services 
provision.
    That type of case led to the parade of horribles that, for 
example, Justice Scalia cited in his dissent from the denial of 
cert in the Sorich case, which is another Illinois case, which 
really primed the Supreme Court to take the Skilling case and 
reach the decision that it did.
    So there are some cases where the harm is quite 
insignificant, and therefore could hardly be said to distort 
the political process in a way that Congress would have----
    Mr. Cohen. And how could you possibly draw a statute to 
distinguish between the two?
    Ms. Griffin. Well, I think there are two answers to that. 
It is absolutely the case--Mr. O'Toole is right in much of what 
he says.
    It is definitely the case that there are due process 
concerns with any new statute, and the Supreme Court 
articulated those in the Skilling decision, and Congress should 
be responsive to those.
    But it can do so in a variety of ways, including by clearly 
linking liability to the failure to disclose under an existing 
requirement.
    And it is not the failure to disclose itself that is being 
punished. That is why there shouldn't be so much concern about 
patchwork requirements in State and local jurisdictions. It is 
the failure to disclose combined with taking advantage of the 
official position to then benefit financially from whatever 
that undisclosed interest might be.
    Mr. Cohen. And, Ms. Brown, what do you think, in the 
decision in Skilling, do you think it needs to be more clear?
    Ms. Brown. I agree 100 percent with what Professor Griffin 
just said, that the gist of this bill is to link those actions 
to reporting requirements, whether they be State, local, 
municipal.
    That is the limit that it has provided. That is the 
knowledge to the individual legislator or public official to 
know----
    Mr. Cohen. What if there is no reporting requirement in 
this at all in a city or--I mean, States have it. They may or 
may not affect a municipal official. Sometimes they cover 
municipal officials, sometimes they don't.
    What if the city doesn't have any disclosure requirement? 
Is it ``Olly, Olly, in free'' for the mayor?
    Ms. Brown. I don't know the answer to that question. I am 
sorry. I'd be happy to get back to you, but I----
    Mr. Cohen. Why do we need to increase the penalty 
provisions? Don't you think--I mean, I am all for the bill and 
for the concept, and I think if a public official does any of 
these acts, they ought to be prosecuted and they ought to be 
convicted, and they ought--but they lose their reputation, they 
lose their job, they are probably never going to get elected 
again.
    I don't know what the sentences are now, but why do they 
need to be increased? I mean, is that really going to be more 
of a deterrent than this public shame, embarrassment, loss of 
office and prestige?
    Ms. Brown. We think so, because that could be said in any 
white-collar case.
    Mr. Cohen. What is the penalty now for a violation? What 
was it under honest services?
    Ms. Brown. It was 5 years.
    Mr. Cohen. Five years----
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from Texas, Ms. Jackson Lee?
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    And I think all of us have a sense of understanding for the 
legislation. You have a sense of pride regarding the importance 
of public service and the necessity of ensuring that we are 
held to the highest standards.
    I raised questions, and I have been listening to my 
colleagues, and so let me pursue some, sort of, out-of-the-
ordinary kinds of questions.
    To the representative from the Department of Justice, how 
extensive is public corruption? Do you have some statistics? 
Have you been in this for a long time? What is your sense of 
it?
    Ms. Brown. I don't have statistics at my fingertips. But 
having worked on public corruption cases for over 20 years, I 
can say that it is quite widespread and quite common.
    Just today I read in the newspaper about a police officer 
here in Washington, D.C., who agreed to plead guilty and was 
sentenced to 7 months in prison, in addition to having to 
resign from her job.
    We know what is happening in Prince George's County. We 
know what is happening in Chicago. I know what is happening in 
the case today in Alabama. There are many, many cases about 
this.
    And I will tell you, as a prosecutor who has been in court 
for these sentencings, that it really undermines the public's 
confidence in their public officials when they see that people 
who are convicted of these offenses, who have been taking 
hundreds of thousands of dollars, or even less, are getting, in 
essence, a slap on the wrist.
    Ms. Jackson Lee. What was the police officer's charge?
    Ms. Brown. The police officer was charged, in the District 
of Columbia, for aiding and abetting a burglary. She acted as a 
lookout.
    Ms. Jackson Lee. Would that almost be like a mass murderer, 
where he draws the attention of the world, but yet there are 
millions of individuals walking the Earth and walking in 
America that are not mass murderers?
    I mean, don't the cases that are most conspicuous draw the 
most attention, while there are throngs who are doing their job 
every day?
    Ms. Brown. There are throngs who are doing their jobs----
    Ms. Jackson Lee. But when you say widespread--let me do it 
this way: Are 90 percent of the public servants in America 
corrupt?
    Ms. Brown. I don't have any statistics for you, 
Congresswoman. I would be happy to get statistics for you about 
how many public corruption cases the 94 U.S. Attorney's Offices 
handle across the country.
    Ms. Jackson Lee. Yes, I would appreciate it. And I would 
also appreciate--and I guess that will be under the Federal 
system, because I guess it would be important to note as well 
how they are addressed in the present framework of the legal 
system, meaning the tools that you have.
    So what is the one tool that you believe this legislation 
gives you that you need?
    Ms. Brown. I think restoring the honest services fraud 
post-Skilling is one of the most important things that----
    Ms. Jackson Lee. Say it again?
    Ms. Brown. Restoring the concept of honest services fraud 
as applied to undisclosed financial interests. That existed 
before Skilling. I think that is the most important thing that 
we are talking about.
    Ms. Jackson Lee. So if you are involved in some actions in 
your company, or involved in that you don't let it be known 
publicly that you have a vested interest or someone has an 
interest?
    Ms. Brown. Right, that you are keeping it secret. You are 
doing it to defraud, and you are----
    Ms. Jackson Lee. So the clear delineation of that language 
is what you think is helpful as notice to the public servant, 
and then notice--or basis upon which you can bring a case? Is 
that what you are saying?
    Ms. Brown. Yes.
    Ms. Jackson Lee. Let me go to Mr. O'Toole.
    I think you see my line of questioning. It is not so much 
embedded in this bill. I think we all need to have a level of 
oversight. But what are the Achilles' heels?
    My Achilles' heels for all of these is that, no matter what 
you are standing, you deserve due process. And the broader the 
bill, the lesser due process, even if there is clarity.
    Mr. O'Toole, what do you say?
    Mr. O'Toole. Yes, if I could respond to a couple of things. 
I mean, first, we at the National Association of Criminal 
Defense Lawyers believe that 99 percent of public servants are 
honest, hardworking people who do not fall into the area of 
public corruption at all. And so I do think that it is a 
problem that is limited to a small number of people.
    Second, those people, as everyone agrees, are currently 
being prosecuted, and pleading guilty and getting long 
sentences.
    And if I could correct one statement earlier, the honest 
services maximum sentence is already 20 years. It is not 5 
years. It is 20.
    And so those sentences are already very long, very tough. 
People go to jail when they do these sorts of things.
    And so what we are concerned most about is that if you are 
going to change the law, that you do so in a way that is very 
clear.
    Because, again, these are unanimous Supreme Court decisions 
that are being overruled. It is not a 5-4 decision, where the 
liberals or the conservatives split.
    These are decisions that all nine justices, bipartisan, 
came together and said not only is this not the law, but it 
would be a very bad situation if it was the law.
    And so I think going slow is really what we would urge 
here.
    Mr. Sensenbrenner. The gentlewoman's time is expired.
    Ms. Jackson Lee. Thank you.
    Mr. Sensenbrenner. The gentleman from Pennsylvania, Mr. 
Marino?
    Mr. Marino. Mr. Chairman, I have no questions.
    Mr. Sensenbrenner. Okay.
    Well, thank you very much, everybody. Let me say what I 
said a few minutes ago, that I think this bill needs to be 
fine-tuned to provide clarity.
    Again, as long as the gentleman from Virginia and his 
mentor, the gentleman from Michigan, don't make me angry, the 
door is open. And I hope that we can have some input from all 
of you as we try to make this bill much clearer, so that 
everybody, from the Justice Department, to a school board 
member in a very small school district, realize what can be 
done and what can't be done.
    I would ask unanimous consent that the witnesses respond 
promptly to any questions that Members of the Subcommittee may 
send to them, in order that we may complete the record.
    And hearing that, the purpose of the Committee's session 
this morning having been completed, without objection, the 
Committee stands adjourned.
    [Whereupon, at 11:23 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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