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What if we've been looking at the Phil Puckett scandal backwards?

From the moment that Virginia State Senator Phil Puckett resigned on June 9, 2014, many commentators--myself among them--have raised the question of whether the GOP leadership in Virginia's General Assembly conspired to bribe Puckett with a judgeship for his daughter and a job for Puckett at the Tobacco Commission with a six-figure salary.

If that is how we understand the transaction between Puckett and the General Assembly Republicans, then we face a hurdle in prosecuting them: was Puckett's resignation an "official act"? In "Va. officials skeptical of U.S. interest in Phillip Puckett’s resignation from state Senate" by Laura Vozzella, Matt Zapotosky, and Jenna Portnoy, these three Washington Post writers describe the obstacle prosecutors face in looking for an "official act."

Even so, legal experts said building a public corruption case against Puckett or Kilgore could be an uphill climb.

In 2010, the Supreme Court decided that the government could not prosecute legislators or government officials for what is known as “honest services fraud” simply because they participated in a self-dealing, conflict-of-interest arrangement.

Prosecutors had to prove that the officials took bribes or kickbacks as part of a quid pro quo, the court decided. Proving that quid pro quo requires prosecutors to show that the public official made or promised to make “official acts” in exchange for the bribes or kickbacks.

The question for Puckett and Kilgore and those investigating the arrangement, experts said, is this: Is resigning one’s office an “official act”?

“It’s a stretch, because I think it’s more of an abdication than an act,” said Andrew T. Wise, a defense lawyer at Miller & Chevalier who represented a lobbyist connected to Jack Abramoff. “I would hate to be the line prosecutor trying to sell this to my supervisor.”

You can read the rest of "Va. officials skeptical of U.S. interest in Phillip Puckett’s resignation from state Senate" at The Washington Post.

But what if we've been looking at the transaction between Puckett and the General Assembly Republicans completely backwards? What if Puckett's resignation was the bribe and Puckett's daughter's judgeship and Puckett's Tobacco Commission job offer were the "official acts"?

Seen in this light, Puckett was the briber, not the "bribee." The General Assembly Republicans didn't try to bribe Puckett, instead they accepted a bribe from Puckett in exchange for the official acts of getting Puckett's daughter a judicial appointment and giving him a well-paid job at the Tobacco Commission, both of which are emphatically "official acts."

It makes little difference in terms of the penalties involved: accepting a bribe is just as illegal as offering a bribe. The difference it makes is in prosecuting the case. If Phil Puckett is cast in the role of briber and Terry Kilgore and the other Republican legislators involved are then shown to have provided "official acts" in exchange for Puckett's bribe, then the prosecution is much more likely to prevail.

Cross-posted from The Richmonder.

Originally posted to The Richmonder on Sun Jun 22, 2014 at 11:44 AM PDT.

Also republished by Virginia Kos.

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Comment Preferences

  •  But Can a Resignation Be a Bribe? (3+ / 0-)
    Recommended by:
    Lujane, aoeu, murrayewv

    A non service, a cessation of services?

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sun Jun 22, 2014 at 11:52:27 AM PDT

    •  Was his resignation something of value? (6+ / 0-)

      Was his resignation something of value?

      From the Wikipedia article on bribery:

      "From a legal point of view, active bribery can be defined for instance as the promising, offering or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions. (article 2 of the Criminal Law Convention on Corruption (ETS 173) of the Council of Europe). Passive bribery can be defined as the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions (article 3 of the Criminal Law Convention on Corruption (ETS 173)."
      I'd call Puckett's resignation an "undue advantage," wouldn't you?
    •  Maybe. (1+ / 0-)
      Recommended by:
  •  So, perhaps the "official acts" lie not in the (2+ / 0-)
    Recommended by:
    JCWilmore, Yonit

    resignation, but in the agreement (if there was such) to confirm the daughter  to the bench and  obtain the appointment to the Tobacco Commission?

    I personally think that the resignation IS an official act, especially since this particular resignation had such resounding consequences - tipping the State House and also because IMO the resignation looks like the required prerequisite quid in order to obtain the quo.

    In a sense it appears that Puckett and the Republicans could have been both briber(s) and bribee(s) simultaneously. The decision as to how to assign the roles probably lies in where the idea of the resignation in exchange for the goodies originated, if that was what occurred.

    “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

    by Phoebe Loosinhouse on Sun Jun 22, 2014 at 12:29:09 PM PDT

  •  What other reason(s) has he given for the timing (1+ / 0-)
    Recommended by:

    of his retirement?

    I'm a Vietnam Era vet. I'm also an Erma Bombeck Era vet. When cussing me out and calling me names please indicate which vet you would like to respond to your world changing thoughts.

    by Just Bob on Sun Jun 22, 2014 at 12:43:57 PM PDT

    •  I'm not sure he has given a reason (2+ / 0-)
      Recommended by:
      Gooserock, Just Bob

      And he's lawyered up now, so he isn't talking.

    •  Once the stench began to rise there was some (0+ / 0-)

      Mention of a "family health problem" that needed to be dealt with. As expected, the statement was followed by a request to respect the family's privacy.
      I haven't heard any mention of this issue since Puckett voluntarily removed himself from consideration for the tobacco commission post.
      While not the standard and hackneyed "I want to spend more time with my family" excuse, in my increasingly cynical opinion Puckett was trying the Liz Cheney gambit to get himself out of a potentially embarrassing (or worse) situation.

  •  I think that makes sense. (1+ / 0-)
    Recommended by:

    At whatever point Puckett decides to help his daughter get the judgeship, he approaches the Republicans and effectively offers them an additional vote until the next election in exchange for their votes to give his daughter the judgeship.

    He' going to be able to get a good paying job as the face man in a firm, or lobbyist or well paid party hack, so he isn't really gaining anything he wouldn't get if he stepped down at the end of his term  It's that judgeship that is the tat in exchange for, effectively, giving Republicans hundreds of Republican legislative votes.

    If he had stayed in his seat and started voting straight line Republican he would have hell to pay in his own caucus, this  has the same effect without all the recriminations.

    Except he wasn't bright enough to realize folks would notice.

  •  Happenstance vs evidence (0+ / 0-)

    The problem is having actual evidence versus "happenstance" events. Puckett  claims that he made his decision to resign ASAP (while the general assembly was in  the middle of a heated debate over medicaid expansion, which the Virginia Senate held a slim one vote majority, and without forewarning or making arrangements w/VA Dem Leadership) because he had to tend to family issues and other matters.

    GOP state delegate Chafin is now running for the vacated senate seat and serves as Chairman of the Board of the bank Puckett currently works:  Article here.

    It is the same bank that holds escrowed oil and gas royalties to be paid to landowners for the oil and gas companies. In 2013..this was a big election issue for the region.

    Virginia keeps it interesting.

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