While waiting for Season 3 of “The Bear,” I watched the “Hit Man,” a based on true story movie about a college professor who moonlights as an undercover agent for the New Orleans Police Department. His job? Disguised as a murder for hire professional, Gary Johnson (played by Glenn Powell) meets with potential clients, records their conversations and accepts payment for eliminating one their adversaries. To document the efficacy of his work, following each encounter, the client is seen posing for his or her mug shot. I give this innovative, well-acted and equally well-directed film a huge thumbs up. (Available on Netflix)
I wish I could say the same for the six justices on the Supreme Court who yesterday decided that the difference between a crime and a thank you is the timing of the payment. In the case of Snyder v. United States, James E. Snyder, the former mayor of Portage, Indiana, received a check for $13,000 from truck manufacturer Peterbilt in 2014, months after the city purchased two trash trucks from the company’s local affiliate for $1.1 million. When charged under 18 USC §666, Snyder argued the law applied only to bribes. Therefore, Peterbilt’s payment after the purchase was a legal gratuity.
Writing on behalf of the 6-3 majority, Justice Brett Kavanaugh did not hesitate to accept Snyder’s argument lock, bump-stock and barrel, beginning his opinion:
The question in this case is whether 18 U. S. C. §666(a)(1)(B) makes it a federal crime for state and local officials to accept gratuities for their past official acts. The answer is no.
Among the reasons for his opinion, Kavanaugh writes:
…the dividing line between §201(b)’s bribery provision and §201(c)’s gratuities provision is that bribery requires that the official have a corrupt state of mind and accept (or agree to accept) the payment intending to be influenced in the official act.
Is anyone surprised that a judicial body which avoids accountability for any appearance of corruption would not use common sense when asked what constitutes “corrupt state of mind?” What was Mayor Snyder’s state of mind when he was handed the personal check for $13,000 check? Did he once consider, “If Peterbilt can afford to give me such a generous gratuity, maybe we paid too much for the two trucks, and the proper response would be to deposit the check in the city treasury?” And did he honestly believe this gratuity would not influence his decision the next time the city needed trucks?
Which brings me back to “hit man” Gary Johnson? Suppose he was a real hit man willingly accepting payment to off a client’s adversary. As the client pulls out an envelop and slides it under the table. Johnson immediately objects, “Not now. That would be corrupt. Give me the money after I’ve completed the assignment. Then we can call it a gratuity.”
Of course, Johnson would still be charged with murder under a different statute, but it least he would not be guilty of corruption. So let’s take another example. Suppose the son-in-law of a former president. serving as a White House senior advisor, facilitates the sale of military equipment to a foreign government. After the son-in-law is no longer a government official, the sovereign fund of that foreign government invests $2 billion dollars in his company Affinity Partners. According to Kavanaugh and his fellow justices, “Nothing to see here. No quid pro quo. It’s just a gratuity.”
Equally disturbing is the fact that Kavanaugh invokes the #1 MAGA defense when it comes to criminal laws, weaponization of the Department of Justice. He channels one of Donald Trump’s greatest hits, “If they succeed in prosecuting me, you’re next.” Kavanaugh writes:
The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so.
I can see it now. FBI agents stationed outside classrooms for the chance to entrap a teacher accepting an apple from a student. Or patrolling neighborhoods during the winter holidays in search of residents offering Starbucks gift cards to their meter reader or garbage collectors.
While Kavanaugh twisted himself into a pretzel to come up with six reasons why 18 USC §666 does not mean what it clearly says, Justice Ketanji Brown Jackson parsed the law to explain why Kavanaugh’s argument was wrong. She reminded the majority:
Ignoring the plain text of §666—which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded”—the Court concludes that the statute does not criminalize gratuities at all.
What is a gratuity other than a REWARD for past service? And by its very definition, the timing of the reward is irrelevant.
When you vote for president this November, remember that the next occupant of the Oval Office may have any number of appointments to the Supreme Court. You will decide whether those nominees rely on common sense when interpreting the law or on their ability to make word salad out out of constitutional and statutory language.
For what it’s worth.
Dr. ESP