For Prosecutors, Two Questionable Calls
WASHINGTON -- Not every bad act is a crime. Not every bad act that can technically be categorized as a crime should be pursued by prosecutors. And not every bad act that clearly amounts to a crime should be pursued by prosecutors in the United States.
Those thoughts are sparked by the recent indictments of international soccer officials on bribery and corruption charges, and former House Speaker Dennis Hastert on charges of structuring hush money payments to avoid bank reporting laws and then lying to the FBI about his conduct.
For different reasons, I find both indictments unsettling -- not necessarily wrong, but worth thinking through whether they ought to have been brought.
The indictment of FIFA officials raises questions about the exercise of U.S. authority to pursue international corruption whose chief harm does not seem to be to U.S. interests or citizens.
The Hastert indictment raises questions even more gut-wrenching: about the proper use of the criminal law; the degree to which technical statutes should be employed to punish conduct that is offensive but uncharged; and the role that celebrity and prominence should play in making prosecutorial decisions.
FIFA first, although it is the less concerning of the two prosecutions. There are two levels on which to examine the 160-page indictment: whether as a technical legal matter the United States has jurisdiction over the acts alleged; and, more fundamentally, whether this is a wise use of U.S. power and prosecutorial resources.
Where does the U.S. get off charging international soccer officials over a bribe allegedly solicited by a Venezuelan citizen from the founder of a Brazilian company at a tournament in Argentina?
As a legal matter, there does seem to be enough of a U.S. nexus. (There's a more nitpicky question about whether the charges were brought in the right venue, Brooklyn.) Two of the 14 defendants are U.S. citizens. Several of the companies allegedly involved have offices in the United States. The U.S. financial system was used extensively to route the payments.
And yet: FIFA itself is headquartered in Switzerland. The bulk of its business takes place outside the United States. So why does it fall to U.S. prosecutors to fix soccer's problems?
One legitimate answer may be that no other country is willing to take on the task; the United States is the world's anti-corruption policeman by default. Another is that U.S. companies are entitled to compete on a level global playing field; if FIFA officials took bribes to award sports marketing contracts, non-bribe-paying competitors were disadvantaged.
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