The criminal offense of bribery involves offering or giving something of value to another person, usually a public official. The purpose of the conduct usually must be:
To influence that person in their official capacity;
To induce them to do something illegal or allow something illegal to occur; or
To induce them to do or omit to do anything else that would violate the law or contradict their official duties.
Many definitions of bribery also include what might be described as the reverse situation, when a public official solicits or demands something of value in exchange for an official act. It also applies to efforts to influence jurors and people who are preparing to give testimony under oath.
Bribery bears some resemblance to the crime of blackmail, since both are often intended to influence the actions of others. The difference is in the means used. Blackmail, much like extortion, involves the use of threats to influence someone’s actions. Bribery achieves its aims by giving, offering, or promising something of value. Once a bribery scheme is underway, the person giving the bribes could turn to blackmail by threatening to reveal the prior acceptance of bribes.
Bribery of Public Officials
Federal law forbids a wide range of activities that might affect how the government functions, including bribery intended to influence public officials or misuse of power by officials to benefit themselves or others. “Public official” is defined as elected members of Congress and other legislative bodies, both after their election or appointment and after they take office. The definition also extends to employees, agents, and officers who have the authority to act on behalf of the government, as well as jurors serving in a civil or criminal trial.
The federal bribery statute prohibits individuals, businesses, and others from “giv[ing], offer[ing] or promis[ing] anything of value” to a public official, or someone who is awaiting final approval to a government position, in order to influence him or her in carrying out official duties. It also prohibits public officials from seeking anything of value in exchange for influence.
McDonnell v. United States
The term "official act" has been somewhat narrowed by the Supreme Court. In McDonnell v. United States, a Virginia Governor’s conviction was vacated by the Supreme Court because his conduct did not fall under the definition of an "official act" in the federal bribery statute. Robert F. McDonnell and his wife were under great financial stress when he was elected Governor of Virginia in 2009. Thereafter, they began to meet with officials of a dietary supplement company and hosted a launch event for the company’s new supplement at the Governor’s Mansion. The McDonnells received $175,000 in loans, gifts, and other benefits from the company. The McDonnells’ convictions were reversed when the Court found that not every customary act undertaken by a public official would constitute an "official act," defining the term as "a decision or action on a ‘question, matter, cause, suit, proceeding, or controversy.’"
Bribery of Jurors and Witnesses
Giving or offering something of value to someone in order to influence his or her sworn testimony, such before a court or legislative committee, is also considered bribery under federal law and most state laws. The same applies to attempts to influence jurors in a civil or criminal trial. Witnesses and jurors are similarly prohibited from seeking or demanding something of value in exchange for influence over their testimony or their deliberation.
Bribery of Government-Funded Programs
A separate federal bribery statute applies to organizations, state and local governments, and Indian tribal governments that receive more than $10,000 in federal funding during a one-year period. A person commits an offense by giving or offering anything of value in an attempt to influence, for the benefit of the organization or government, business transactions with a total value of $5,000 or more.
Commercial bribery involves giving or offering something of value to an employee or agent of a business in order to obtain a benefit, as well as soliciting or demanding something of value from someone other than one’s employer in exchange for using one’s position to benefit that person. A common type of commercial bribery is known as a kickback, by which a person makes a direct payment, or offers something else of value, to someone else in order to secure a business advantage.
Federal law does not directly address commercial bribery, although mail and wire fraud laws may apply to some commercial bribery schemes. Many states expressly prohibit commercial bribery, such as California, which makes it an offense to offer or demand anything in excess of $250 in value. New York has a very broad statutory regime targeting commercial bribery, which also covers issues like sports fixing and rent gouging.