The Supreme court has gone out of its way to weaken:
- voting rights for immigrants, native americans, former convicts and black people,
- criminal sanctions on bribery
- ...and to grant a nonsensical cover of "free speech" to bribes, extortion & corruption.
But no matter their rulings, the issue with corruption is and remains an ethical issue of:
- Undue Influence
- Improper Access
So why is that the case? When I started this post I hadn't heard yet Justice Kennedy's announcement that he was retiring in favor of a former Law Clerk, Kavanaugh, and through the influence of his son and Donald Trump. I was going to change this post to talk about it in detail. But in the interest of KISS, I'll finish this one first and put the details somewhere else. I'll come back here and put the references in the post later. The scandal of the Kavanaugh appointment happened, illustrates:
- How improper access and undue influence work.
- Why it is often hard to legislate or prevent.
- Why they are improper, corrupt, corrupting and outrageous
- Why those who are corrupt usually deny it.
Keeping officials on the "up and up" requires fairly clear ethics rules, with statement both of principle and particular prohibitions. This is because unless prohibited many of these actions seem perfectly legal to the corrupt. After all, negotiating a retirement is something every business does!
Undue Influence Definition
"Undue influence" is and has been part of the definition of bribery since the beginning of the country. It's not just a concept for invalidating wills. Laws prohibiting undue influence are not only constitutional they are a time honored principle of legal jurisprudence. It is part of the definition of bribery!
Bribery is defined as when someone:
“directly or indirectly, corruptly gives, offers or promises anything of value to any public official...or ...give anything of value to any other person or entity, with intent to influence an official act.” [Corrupt Judges]
“Undue influence” is at the heart of our political corruption through improper access and the money power. This connects not only to campaign law but to power and influence in general.
Undue Influence and English Jurisprudence
 |
| https://www.law.cornell.edu/supct/html/08-205.ZX.html |
http://en.wikipedia.org/wiki/Undue_influence
The Free Dictionary gives details about the English law, that support a similar use under British Jurisprudence:
"A judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside.
English Jurisprudence also gives the principle behind the law:
"Virtually any act of persuasion that over-comes the free will and judgment of another, including exhortations, importunings, insinuations, flattery, trickery, and deception, may amount to undue influence. Undue influence differs from duress, which consists of the intentional use of force, or threat of force, to coerce another into a grossly unfair transaction. Blackmail, Extortion, bad faith threats of criminal prosecution, and oppressive Abuse of Process are classic examples of duress."
So the question is, would bribery or a persons desire to join the club constitute "undue influence?"
Seems to me it would.
Reading the rest of the article (reproduced in "Additional Discussion") one can tell that the legal concept is mainly used to invalidate wills for old men who leave all their worldly goods to some young lady they met at a bar during their last days, but universal concepts apply, or ought to apply to any situation where the definitions apply. And if politicians aren't innocent, money and power are as much an undue influence as any arm candy honey trying to finagle the nest egg out of an old rich person.
Undue Influence and the Postal System
The postal system uses the word "undue influence" in reference to bribery. The post office mandates that:
"An employee must report immediately to the Office of Inspector General:"
"Any instance in which a person either within or outside the Postal Service uses or attempts to use bribery, undue influence, or coercion to induce or attempt to induce the employee to act or neglect to act in regard to official responsibilities."
http://about.usps.com/manuals/elm/html/elmc6_029.htm
And as I noted before bribery is defined! under title 18 as:
" directly or indirectly, corruptly gives, offers or promises anything of value to any public official...or ...give anything of value to any other person or entity, with intent— "
And all this to:
"(A) to influence any official act..."
Bribery isn't just piling a heap on goods on a desk in return for promises, yet SCOTUS decided to redefine Bribery several years ago! I was appalled by the case, but I didn't know then what I know now. You see the other part of corruption "Improper Access", is harder to regulate. Partly because SCOTUS ruled that it is perfectly legal. I wrote about this in 2012 and 2013:
- Corrupt Judges on the Supreme Court
- I was trying to understand the Montana Decision:
- Corrupt Court Decision (Montana Decision)
Then SCOTUS decided to redefine bribery. By extending the first amendment to protect Bribery, ruling:
“The right to participate in democracy through political contributions is protected by the First Amendment”
- The article Undue Influence and Dependency Corruption covers this well:
- Undue Influence and Dependency Corruption - 2014
- Our Corrupt Supreme Court - 2016
Improper Access
Improper Access comes before "undue influence". Judges are human beings. Many are political animals, have family members who may have business before the court or want to influence the courts proceedings, or friends, associations business relations. Without improper access there is no undue influence in most cases.
Avoiding "Improper Access" has always been a principle of ethics. Jewish Rabbis aren't supposed to be alone with women because even the appearance of improper behavior, can be corrupting. Judges should not be spending time with people with cases before the court. Teachers are not supposed to have "improper relationships" between teachers and Students. Texas even defines it by statute:
“The Texas Penal Code Section 21.12 provides the definition for “improper relationship with a student.” It is defined as any sexual contact or sexual intercourse between a public or private school employee with a person who is enrolled in the public or private school in which the employee works.” [Google it]
Avoiding The Appearance of Impropriety
The Courts pay lip service to such principles. The US Code of Conduct for US Judges lists in its canon rules that judges should avoid impropriety and the appearance of impropriety:
However the rules,
- A. Don't apply to SCOTUS for some reason
- B. Don't prohibit outside influences from family, friends or business relationships, if they are "on the downlow."
The reality is that the only way to prevent that is to recognize that improper access, always comes with a temptation to break the rules covertly, for private gain. Access enables influence. The only way to regulate undue influence is to regulate access. At the very least Judges should have to disclose their influential relationships and the access that others, outside the courts, have to them. And at the very least the Supreme Court should be subject to the US Code of Conduct! Covert influence operates through country clubs, family members, friends such as ex law clerks (Kavanaugh), wives with jobs with matters under litigation (Thomas), etc... Not all conflicts of interest can be avoided, which is why judges are supposed to recuse themselves from matters they have a personal interest in.
Improper Access and Undue Influence
Courts like the Supreme Court, elected officers, and similar have always had temptations to give into influence through improper access, emoluments or more subtle trades. Plea bargaining is a kind of legal horse trading in which prosecutors or judges agree to a lesser charge to make it easier to convict the perpetrator or get their cooperation on other matters. However it is a false claim that:
“independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 558 U. S. ___, ___ (2010) (slip op., at 42)
Any kind of quid pro quo arrangement, plea bargain, family ties, golfing friendships, almost necessarily give rise to either the appearance or the reality of corruption. With
So Why The #Corrupt SCOTUS legalized Bribery?
So why does the corrupt supreme court deny the principle?... In my view because they are corrupt! A whole industry has developed of law students working their way into the courts to advance ideological beliefs. The Kennedy retirement illustrates what is almost a machine that involves the Federalist Society, big bankrolls and people indoctrinated and groomed for higher office. They are selected from the privileged, taught to regard privilege as their right, and coached on what to say to get past people trying to sniff out dogmatic behavior or corruption. All this would seem harmless except it is done to protect a narrow class of humans rather than the general good. Systematic corruption probably can't be eliminated, but legalizing it, makes even mitigating it difficult.
Undue Influence and Improper Access Are Tyranny
Indeed improper access and undue influence are not only at the heart of corruption and oppression they are the heart of tyranny is “Private Separate Advantage” As John Locke explained in his Two Treatises on Govenment:
Corrupt Court
The record of how systematic corruption works, was summarized in the Montana Case where Breyer noted that:
“the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.”
SCOTUS ignored it. This corrupt court substitutes procedural (fake) “due process” for the constitutional protections that intended “substantive” due process.
Further reading: http://holtesthoughts.blogspot.com/search?q=undue+influence
Additional Discussion
When reading up on "undue influence" I came across an article on the use of the principle in court cases where fraud had occured and people been swindled. Undue influence is part of how the powerful and predatory con the weak and vulnerable. If this is so in the formal world of nursing and caretaking, it is also true in the world of people who have a fiduciary or legal duty to protect the public and individual good of those who come into their courts or seek legislation. The Legal Dictionary(!) notes:
“Four elements must be shown to establish undue influence.” [Legal Dictionary]
Susceptibility
“First, it must be demonstrated that the victim was susceptible to overreaching. Such conditions as mental, psychological, or physical disability or dependency may be used to show susceptibility.” [Legal Dictionary]
In the case of victims of fraud the person being influenced must be susceptible to fraud. However, those coming to the courts for justice are, by definition, susceptible to the over-reaching of judges or the corrupt behavior of executives and legislators. None of us are as powerful as a magistrate. All of us are impacted by new laws and regulations. We are all susceptible to undue influence either directly or indirectly, and those with power are susceptible to undue influence when they blindly enter into relations or let family or friends do them favors.
When money or favors are offered to judges or legislators, any judge will be susceptible to that influence. Even gifts (emoluments), can give the appearance of of corruption, if exposed later. Thus the mere taking of gifts from someone, or spending time with someone inappropriately can later be used as a source of extortion and thus further influence. Quid Pro Quo, don't always occur at the same time. Often a "gift" is given that is later revealed to not be a "gift" at all. Even innocent gifts, can later become a tool for extortion, as the giver's situation can change.
Making the Promise, Setting the Hook
Thus both Giving or taking a bribe, kickback, gifts, party, country club measurement, all can become sources of "undue influence" later. This is because the very act generates susceptibility on the part of the person being influenced, even if it didn't already exist! Con men, foreign agents and mafioso typically "give" something, or the promise of something, "for nothing", as a baited hook to their marks. Once the victim, official or person with something to steal, reaches for the free goods and services, the hook is set.
Reeling them In
The article on "undue influence continues:
“Second, there must be an opportunity for exercising undue influence. Typically, this opportunity arises through a confidential relationship. Courts have found opportunity for undue influence in confidential relationships between Husband and Wife, fiancé and fiancée, Parent and Child, trustee and beneficiary, administrator and legatee, Guardian and Ward, attorney and client, doctor and patient, and pastor and parishioner.” [Legal Dictionary]
Only the dumbest criminals reel in their marks immediately. They'll spend time cultivating a relationship, and the truly diabolical will give many gifts, most small and seemingly harmless, create and exploit minor favors, before ever moving in for the kill.
Improper Access
Improper access is a step in the process of corruption. In the case of government officials; legislators, judges to the mark, prior to hooking his victim. The appearance of corruption is often the first step in generating corruption. Tiny favors, gifts lead to long term access. A sense of gratitude can be as corrupting as a pile of gold left on a desk.
We have a long record (Montana Case) of how that works. Corruption often works its magic over a long period. For example Russian Spies spend decades worming their way into their target organizations and lives, and years more cultivating the people being influenced. The same goes with mafioso and some criminal operations.
Improper Access is a step to Influence
Even if perfectly legal, it is no accident that Justice Kennedy's son got a job at Deutsche Bank, or that that may have influenced Kennedy's repeated findings on corruption. Nor is it an accident that he became global head of Deutsche bank. His status as the son of a justice got him in the door. That status played a role whether he wanted it to or not, in his rise in power and influence. Politifact and powerful newspapers can dissemble about the subject, but the very fact of his son working for such a bank had influence on his father. And gave access to the corrupt for influencing him through his son. It doesn't matter if it was actually corrupt. The very fact that:
“Justin Kennedy, the former global head of Deutsche Bank's real-estate capital markets division, was one of Trump's close business associates” Kennedy Son
At the very least, generates the appearance of corruption in Trump's access to Kennedy in private conversations and influence campaigns. For that reason Judges are normally discouraged from getting into such associations and required to disclose them if they engage on them. Unfortunately the Citizens United Case and subsequent decisions allowed people like Kennedy to ignore that reality.
Motive and Inclination
Recusal rules exist because proving that influencers broke the law is difficult, even when the corrupts don't legalize most forms of graft and corruption with absurd rulings. This is because in proving graft most courts require that:
“Third, there must be evidence that the defendant was inclined to exercise undue influence over the victim. Defendants who aggressively initiate a transaction, insulate a relationship from outside supervision, or discourage a weaker party from seeking independent advice may be attempting to exercise undue influence.” [Legal Dictionary]
Unfortunately Kennedy's decision put the onus on proving this so high that most forms of influence pedaling were legalized.
Improper Access Generates Opportunity for Graft
Country club membership, or campaign contributions aren't considered "undue influence" by the courts, but that is the reason they were created. Even the most benign politician gives more access to money campaign contributions than to other citizens. Improper access always generates compromising material and the appearance of corruption. Access must be transparent, regulated, recorded and limited, or it gives opportunity to people to convince officials to rule in their favor. Government Officials should not even rule on cases where a friend, colleague or private interest, is involved, unless they can prove that there is no effective influence on them from those persons or organizations.
Corruption occurs under cover of Darkness -- Transparency
The rules for establishing Undue influence continue:
“Fourth, the record must reveal an unnatural or suspicious transaction. Courts are wary, for example, of testators who make abrupt changes in their last will and testament after being diagnosed with a terminal illness or being declared incompetent, especially if the changes are made at the behest of a beneficiary who stands to benefit from the new or revised testamentary disposition.” [Legal Dictionary]
Without transparency, that record may not be easily discovered. That is why wills are written and recorded the way they are. If money and resources are involved, people will try to influence on another. That already applies in the case of wills and contractual transactions:
“Nevertheless, courts will examine the facts closely before finding that a transaction has been tainted by undue influence. Mere suspicion, surmise, or conjecture of overreaching is insufficient. The law permits loved ones and confidants to advise and comfort those in need of their support without fear of litigation. Courts are also aware that the doctrine of undue influence can be used as a sword by the vindictive and avaricious who seek to invalidate a perfectly legal transaction for personal gain. When undue influence is found to have altered a transaction, however, courts will make every effort to return the parties to the same position they would have occupied had the overreaching not occurred.” [Legal Dictionary]
If this is so for wills and contracts, it should even be more so for official behavior. Regulating official behavior requires that influence and access be transparent and regulated. The appearance of corruption is part of corruption. If "undue influence can invalidate the wills of old men who gave everything to some 20 year old "arm candy" then regulating "outside contributions", emoluments and gifts and the behavior of officials who have outside contacts that may (remember may almost certainly implies will) influence their decisions, is not only appropriate and constitutional, but is mandated by the principles established in the emoluments clause of the constitution.
Outside Influences ARE CORRUPTING
The reality is that outside influences on Judges, Executives, & legislators, can be a corrupting influence on them, and unless the officers follow basic rules of proper behavior, disclose such influences and recuse themselves from them, they will be corrupted, long con, by them. We have three remedies for undue influence and Access:
- Recusal and Disclosure
- Vetting reviews of candidates
- Audits and Accounting Reviews
The ruling that influence is not corruption, was itself a corrupt ruling.
http://legal-dictionary.thefreedictionary.com/undue+influence
I'll update this more later. I have a lot more to say.
Related Posts
- Why the Montana Decision shows that the Court is Corrupt, not merely mistaken.
- Montana Decision: https://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf
- Corrupt Judges
- Locke:
- http://holtesthoughts.blogspot.com/2014/06/the-real-right-to-property-is.html
- Court:
- Corrupt Court - Montana Decision Throws out 100 years of case law June 2012
- Corrupt Judges on the Supreme Court
- A Corrupt Decision blind to Corrupt Influence October 8 2013
- The expected corrupt Decision by a Corrupt Court April 2014
- Corrupt Court and Undue Influence and access according to Founders April 2014
- Is Quid Pro Quo Bribery the only kind of Corruption the Government can Punish?
- Corrupt Court overturns a Bribery Conviction January 2016
*Note, the corrupt Supreme Court has determined that even quid pro quo bribery is now difficult to prosecute
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