If you think about it, elected officials are given gratuities all the time. Why do you think some people pump money into their campaign coffers? It’s to thank them, whether for doing something specifically valuable to a contributor or just being the sort of politician who will do what they want them to do. Currying favor with people who have the power to do things you want done is as American as apple pie. But that has nothing to do with the holding in Snyder v. United States, which is being roundly misstated to whip up the groundlings against the corrupt Supreme Court.

Held: Section 666 proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.

The 666 refers to 18 USC § 666, and more particularly, subsection (a)(1)(B), which provides:

(a) Whoever, if the circumstance described in subsection (b) of this section exists—

(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—

(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more;

The question raised was whether James Snyder, the former mayor of Portage, indiana, violated § 666(a)(1)(B) by going to a town contractor who had already been awarded big money contracts and asking for $15,000, of which he received $13,000 because he sucked at gratuity negotiations. Snyder was not a good guy. What Snyder did was not a good thing. But that’s not the issue in the case, which was whether the bad thing he did violated § 666(a)(1)(B). Mind you, as a local mayor, he was also subject to criminal prosecution under state law, and this case only deals with the interpretation of a federal statute.

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. Six reasons, taken together, lead us to conclude that §666 is a bribery statute and not a gratuities statute—text, statutory history, statutory structure, statutory punishments, federalism, and fair notice.

Justice Kavanaugh, writing for the Court,  winds through his reasoning for why the statute does not cover post hoc gratuities where the defendant’s official act was not influenced by it, there having been no quid pro quo for doing the act, whether it was paid beforehand or afterward. Is  the majority right? Maybe. Maybe not. And that’s the key point that hysterical pundits ignore.

While Kav never says it, Justice Gorsuch spells it out in his concurring opinion.

Call it what you will. The Court today speaks of inferences from the word “corruptly,” the statute’s history and structure, and associated punishments. It discusses concerns of fair notice and federalism. But the bottom line is that, for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant’s charged  conduct. And when that happens, judges are bound by the ancient rule of lenity to decide the case as the Court does today, not for the prosecutor but for the presumptively free individual.

The Rule of Lenity is a thing of beauty, requiring ambiguity in a statute to be interpreted in favor of the accused. Even of the majority’s interpretation of 666 is questionable, the doubt arises from ambiguity in the drafting of the statute. Ambiguity? Boom, rule of lenity applies. Yes!

Justice Jackson, with Kagan and Sotomayor joining, doesn’t share my love of the Rule of Lenity, at least when the target is a public official. There is a possibility she might be a Rule of Lenity lover in a different case with a different defendant. But I digress.

Officials who use their public positions for private gain threaten the integrity of our most important institutions. Greed makes governments—at every level—less responsive, less efficient, and less trustworthy from the perspective of the communities they serve. Perhaps realizing this, Congress used “expansive, unqualified language” in 18 U. S. C. §666 to criminalize graft involving state, local, and tribal entities, as well as other organizations receiving federal funds. Salinas v. United States, 522 U. S. 52, 56 (1997). Section 666 imposes federal criminal penalties on agents of those entities who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded.” §666(a)(1)(B).

Today’s case involves one such person.

She’s got a point about James Snyder, who was hardly a sympathetic defendant. If somebody had to go down for violating 666, nobody would lose any sleep if that somebody happened to be James Snyder. But being a despicable defendant isn’t a legal rationale for whether the statute was ambiguous, and if ambiguous, whether the Rule of Lenity applies.

Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.

If Justice Jackson seeks to persuade the brethren and sistren to see it her way, this is not the way to do so. If her purpose was to get certain cable TV pundits to praise her boldness, while failing miserable to accomplish anything useful, then this line makes more sense.

The cable pundits are proclaiming that the Court held that bribes paid after the performance of an official act are lawful. That’s not at all what the Court held. You can disagree with the majority’s interpretation of 666, and hate the Rule of Lenity, but only when it helps a defendant you despise. But it behooves neither the dissenting justices nor the cable pundits to whip up false hysteria when they know they’re going to love the Rule of Lenity when a defendant of a different complexion comes to the Supreme Court.