Federal prosecutors have powerful statutes available to prosecute public corruption. But federal criminal law does not make every unethical act, political favor, gift, or exercise of influence a federal crime.
The Supreme Court has repeatedly placed limits on federal public-corruption prosecutions.
One of the most important decisions is McDonnell v. United States, 579 U.S. 550 (2016), which narrowly defined what constitutes an “official act” for purposes of the federal bribery statute.
Other Supreme Court decisions, including Skilling v. United States, Percoco v. United States, and Snyder v. United States, have further defined the boundaries of federal honest-services fraud and public-corruption prosecutions.
Federal criminal defense attorney Michael J. Petro has more than 35 years of experience representing individuals facing serious federal investigations and criminal charges, including fraud, bribery, and white-collar offenses.
What Is Honest Services Fraud?
The federal honest-services fraud statute is found at 18 U.S.C. § 1346.
It provides that the term “scheme or artifice to defraud” in the federal mail and wire fraud statutes includes a scheme to deprive another of the intangible right of honest services.
Read literally, that language could potentially reach an enormous range of unethical conduct.
The Supreme Court has refused to interpret it that broadly.
In Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court limited § 1346 to the core category of honest-services fraud recognized before Congress enacted the statute:
Bribery and kickback schemes.
The Court rejected the government’s attempt to use honest-services fraud as a general prohibition against undisclosed self-dealing.
That limitation is extremely important in defending an honest-services fraud prosecution.
Honest Services Fraud Is Not a General Ethics Law
Federal criminal law does not give prosecutors unlimited authority to prosecute conduct merely because it appears improper, creates a conflict of interest, or violates an ethical rule.
A public official may engage in conduct that is:
- Politically controversial
- Unwise
- Unethical
- A violation of an employment policy
- A violation of a state or local ethics rule
without necessarily committing federal honest-services fraud.
The government must prove the elements of the particular federal criminal offense charged.
For an honest-services fraud prosecution under § 1346, Skilling requires a bribery or kickback scheme.
McDonnell v. United States
The Supreme Court’s decision in McDonnell v. United States is one of the most significant modern federal public-corruption cases.
Robert McDonnell served as Governor of Virginia.
Businessman Jonnie Williams wanted Virginia universities to conduct research concerning a dietary supplement manufactured by his company.
Williams provided McDonnell and his family with loans, gifts, vacations, and other benefits.
Federal prosecutors alleged that McDonnell accepted those benefits in exchange for using his position as governor to assist Williams.
A jury convicted McDonnell of federal corruption offenses.
The Supreme Court unanimously vacated his convictions.
The central issue was the meaning of “official act.”
What Is an “Official Act”?
The federal bribery statute, 18 U.S.C. § 201, defines an official act in relation to a “question, matter, cause, suit, proceeding or controversy” that may be pending or may by law be brought before a public official.
In McDonnell, the Supreme Court required a focused analysis.
First, the government must identify a specific and focused question, matter, cause, suit, proceeding, or controversy involving a formal exercise of governmental power.
Second, the public official must make a decision or take an action on that matter—or agree to do so.
This prevents federal bribery law from turning every interaction between a public official and a constituent or supporter into a potential federal crime.
Arranging a Meeting Is Not Automatically an Official Act
One of McDonnell’s most important holdings concerns routine political activity.
The Supreme Court made clear that merely:
- Arranging a meeting
- Talking to another government official
- Making a telephone call
- Hosting an event
does not, standing alone, constitute an official act.
A public official may certainly use those activities as part of an effort to influence an actual governmental decision or action. In that situation, the government may attempt to prove that the official agreed to exert pressure on another official or provide advice intending that the advice form the basis for an official decision.
But the routine act of arranging access is not itself enough.
Why McDonnell Matters
Without a meaningful limitation on the definition of an official act, ordinary political behavior could become vulnerable to federal prosecution.
Elected officials routinely:
- Meet with constituents
- Listen to business owners
- Speak with donors
- Arrange meetings
- Refer constituents to government agencies
- Attend events
- Make introductions
- Advocate for projects
- Discuss pending issues with other officials
Some of this activity may be influenced by political relationships.
That alone does not establish federal bribery.
The prosecution must prove the criminal exchange required by the applicable statute and, when § 201’s official-act requirement governs, connect that exchange to a qualifying official act.
The Quid Pro Quo
Bribery generally requires more than proof that a person gave something of value to a public official.
The government must establish the required quid pro quo—an exchange in which the payment or benefit is given or accepted in return for governmental action.
In plain language:
Something of value in exchange for official action.
This distinction matters because public officials frequently receive lawful campaign contributions, interact with supporters, and maintain relationships with people who have interests before government.
The existence of a payment, gift, contribution, or personal relationship does not by itself establish bribery.
The government must prove the required corrupt agreement.
Honest Services Fraud After Skilling
Skilling v. United States substantially narrowed the scope of honest-services fraud.
The Supreme Court concluded that § 1346 applies to schemes involving bribes and kickbacks, not to every breach of fiduciary duty.
That means prosecutors cannot simply argue:
The defendant had a duty, violated that duty, and therefore committed honest-services fraud.
The government must prove the kind of bribery or kickback conduct that falls within § 1346.
This distinction can be particularly important when the prosecution attempts to transform alleged conflicts of interest or self-dealing into federal felonies.
Private Citizens and Honest Services Fraud: Percoco v. United States
The Supreme Court revisited honest-services fraud in Percoco v. United States, 598 U.S. 319 (2023).
Joseph Percoco had been a senior aide to New York Governor Andrew Cuomo. During an eight-month period when he temporarily left government employment to manage the governor’s reelection campaign, Percoco accepted payments to assist a private company in dealing with a state agency.
The government prosecuted him for conspiracy to commit honest-services wire fraud.
The jury was instructed that Percoco could owe the public a duty of honest services even while he was a private citizen if he dominated and controlled governmental business and government employees relied upon him because of his special relationship with government.
The Supreme Court held that this standard was too vague.
The Court rejected the idea that a private person’s political influence or governmental “clout” is enough, by itself, to create a federal honest-services duty.
Percoco Does Not Mean a Private Citizen Can Never Owe a Duty
The Supreme Court did not adopt an absolute rule that only formal government employees can owe a duty of honest services to the public.
For example, a person who is not formally employed by the government could potentially become an actual agent of the government and thereby acquire fiduciary obligations.
But Percoco rejected a vague standard under which a politically influential private citizen could face federal criminal liability merely because that person exercised substantial influence over public officials.
That limitation reflects an important principle running through the Supreme Court’s modern public-corruption decisions:
Federal criminal statutes must provide sufficiently clear boundaries between criminal conduct and ordinary political activity.
Bribes Versus Gratuities
Another important distinction is the difference between a bribe and a gratuity.
A bribe is a corrupt exchange tied to future government action.
A gratuity generally involves a benefit given as a reward for an official act that has already occurred, without the same advance corrupt agreement.
That distinction became particularly important in Snyder v. United States, 603 U.S. 1 (2024).
Snyder v. United States
James Snyder was the mayor of Portage, Indiana.
The city awarded contracts worth approximately $1.1 million to purchase garbage trucks from a local company.
After the contracts were awarded, the company paid Snyder $13,000.
Federal prosecutors charged Snyder under 18 U.S.C. § 666, which prohibits certain corrupt payments involving agents of state and local governments and organizations receiving federal funds.
The government treated the payment as an illegal gratuity.
The Supreme Court rejected that interpretation.
The Court held that § 666 prohibits bribes but does not criminalize gratuities given to state and local officials for past official acts.
That distinction can be decisive in a federal corruption prosecution.
Timing of the Alleged Agreement Matters
Snyder illustrates why the timing and purpose of a payment must be carefully examined.
There is an important difference between:
“I will pay you if you take this governmental action for me.”
and:
“I am giving you something after you already took an action.”
The first may present a classic bribery theory if the government can prove the corrupt agreement and the other statutory elements.
The second does not automatically establish bribery.
Under Snyder, § 666 does not provide a general federal prohibition against state and local officials receiving gratuities for past acts.
Federal Law Does Not Police Every Gift to a Public Official
The Supreme Court’s public-corruption decisions repeatedly express concern about converting ordinary state and local political activity into federal crimes without clear congressional authorization.
That does not mean gifts to public officials are necessarily lawful.
Other laws may apply, including:
- State bribery statutes
- State ethics laws
- Federal bribery statutes
- Campaign-finance laws
- Disclosure requirements
- Conflict-of-interest laws
- Other federal criminal statutes
The important point is that prosecutors must prove the elements of the specific offense charged.
Federal courts cannot expand a criminal statute simply because the alleged conduct appears unethical.
Federal Honest Services Fraud and Mail or Wire Fraud
Honest services fraud is generally prosecuted through the federal mail fraud or wire fraud statutes.
A prosecution may therefore involve allegations concerning:
- Emails
- Text messages
- Telephone calls
- Bank transfers
- Electronic communications
- Mailings
- Financial records
- Contracts
- Campaign records
- Government communications
The government may attempt to use these communications to establish both the alleged scheme and the defendant’s intent.
The defense should examine the communications in their full context rather than accepting the government’s characterization of them as isolated messages.
Intent Is Critical
Federal fraud and bribery offenses generally require proof of criminal intent.
The fact that an official received a benefit and later took governmental action does not necessarily establish that the two were part of a corrupt exchange.
Important questions can include:
- When was the benefit offered?
- When was it received?
- What did the parties say?
- Was any governmental action discussed?
- Was there an agreement?
- Was the official action already completed?
- Was the payment compensation for legitimate services?
- Was the benefit a lawful campaign contribution?
- Was the alleged governmental action actually an “official act” when that requirement applies?
- Is the government’s theory based on inference rather than an express agreement?
The chronology can be extremely important.
Campaign Contributions Require Careful Analysis
Campaign contributions present special issues in public corruption cases.
Political candidates routinely receive contributions from people who support their policies or have interests affected by the government.
The existence of a contribution followed by favorable governmental action does not automatically establish bribery.
Courts distinguish lawful political support from corrupt payments made in exchange for governmental action.
The government’s evidence regarding the alleged agreement and the defendant’s intent is therefore critical.
Federal Prosecutors Must Identify the Criminal Exchange
A strong defense to an honest-services fraud or bribery prosecution may focus on precisely defining the government’s theory.
The defense should ask:
What exactly was given?
What exactly was promised in return?
When was the agreement supposedly made?
What governmental decision or action was involved?
What evidence proves the defendant knowingly entered a corrupt exchange?
General allegations of influence, access, friendship, political support, or favorable treatment may not be sufficient.
The prosecution must prove the statutory offense beyond a reasonable doubt.
Defending an Honest Services Fraud Case
Federal public-corruption investigations can involve enormous quantities of evidence.
Defense counsel may need to review:
- Emails
- Text messages
- Financial records
- Bank records
- Campaign contributions
- Contracts
- Government records
- Meeting calendars
- Telephone records
- Witness interviews
- Grand jury testimony
- Search warrant materials
- Electronic devices
- Recorded conversations
- Cooperating witness testimony
The chronology should be reconstructed carefully.
The defense should determine whether the evidence actually establishes a corrupt exchange or whether prosecutors are attempting to infer criminal intent from ordinary political or business relationships.
The Supreme Court Has Repeatedly Limited Broad Corruption Theories
The development of federal public-corruption law demonstrates an important pattern.
In Skilling, the Supreme Court limited honest-services fraud to bribery and kickback schemes.
In McDonnell, the Court rejected an expansive definition of “official act.”
In Percoco, the Court rejected an overly vague standard for imposing an honest-services duty on a politically influential private citizen.
In Snyder, the Court held that § 666 criminalizes bribes—not after-the-fact gratuities to state and local officials.
These decisions do not eliminate federal public-corruption prosecutions.
They require prosecutors to stay within the boundaries Congress established.
Experienced Federal Honest Services Fraud Attorney
Michael J. Petro has more than 35 years of criminal defense experience representing individuals facing serious federal criminal investigations and prosecutions.
Honest-services fraud and public-corruption cases can involve complicated questions concerning bribery, kickbacks, fiduciary duties, official acts, gifts, campaign contributions, financial transactions, and the defendant’s intent.
The Supreme Court has repeatedly emphasized that federal criminal statutes cannot be interpreted so broadly that ordinary political conduct, influence, access, or unethical behavior automatically becomes a federal felony.
When the government alleges honest-services fraud or public corruption, the defense should identify exactly what corrupt exchange the government claims occurred and whether that conduct actually satisfies the elements of the charged federal statute.
If you are under federal investigation or facing charges involving honest-services fraud, bribery, public corruption, mail fraud, wire fraud, or another white-collar offense, contact federal criminal defense attorney Michael J. Petro to discuss your case.