“Quid Pro Quo 101”
Law360 10/31/19 Luke Cass
The phrase “quid pro quo” is having its moment. The simple Latin phrase, translated literally as “something for something,” has captured the public’s imagination in a way few legal concepts have in recent memory, vaulting itself from its dusty, common law confines and into our national conversation as three House committees investigate allegations that President Donald Trump sought assistance from Ukraine in the upcoming election.
Quid pro quo has become the pumpkin spice of the federal legal lexicon and will undoubtedly infiltrate Thanksgiving dinner conversations across the country. However, many have used the term with abandon, assuming it covers all manner of Luke Cass sins. While the phrase captures a keystone corruption concept, the meaning of quid pro quo is limited and specific in federal crimes involving graft. This article examines quid pro quos in the context of five public corruption statutes, the scope of conduct covered by them, and the circumstances in which they are commonly charged.
Perhaps the most commonly used corruption offense is bribery of a public official under 18 U.S.C. Section 201(b). It criminalizes directly or indirectly, corruptly giving, offering or promising “anything of value to any public official” with intent to “influence any official act,” influence the public official to commit fraud, or to omit to do any act in violation of a lawful duty.
A “public official” includes officers and employees of the federal government, but covers more broadly those that occupy positions of public trust with official federal responsibilities whether they are formal employees or contractors. The statute targets both bribe givers and takers.
Bribery requires proof of a quid pro quo — a specific, corrupt intent to give or receive something of value in exchange for an official act. Breaking this trinity down further, quid is the thing of value, pro is the exchange and quo is the official act. The deal may be struck tacitly.
Quid has been interpreted broadly by courts, which have recognized that monetary worth is not the sole measure of value. Therefore, tangibles and intangibles can qualify as quid, not only those things typically associated with bribes like cash or goods, but those that often are not like sex or shares in stock that have yet to accrue value. Campaign contributions may also qualify as quid, but in those cases the government must prove that the payment was made “in return for an explicit promise of undertaking by the official to perform or not to perform an official act.”
Quo, or the official act, is statutorily defined, but the U.S. Supreme Court in McDonnell v. United States narrowed it significantly. First, the “‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee” and “must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”
Second, “[t]o qualify as an ‘official act,’ the public official must make a decision or take an action on that ‘question, matter, cause, suit, proceeding or controversy,’ or agree to do so.” This “may include using [an] official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.” Without more, “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so),” are not quo. And logrolling, or exchanging political favors — quo in exchange for quo — is not bribery.
[T]he consequences of bribery not only affect the parties to the crime but also have a negative effect on society at large.
Bribery, therefore, is singular in the type of havoc it wreaks that exceeds the parties or specific victims. This reality is reflected in its stiff penalties of up to fifteen years imprisonment, a fine of up to three times the monetary equivalent of the quid and disqualification from “holding any office of honor, trust, or profit under the United States.”
Federal Programs Bribery
Federal program bribery under 18 U.S.C. Section 666 was designed to protect the integrity of federal funds “to encompass local officials who may administer federal funds, regardless of whether they actually do.” Section 666 criminalizes a broader range of criminal conduct than Section 201, including embezzlement, with specific jurisdictional hooks and timing.
Section 666(a)(1)(A) requires proof of five elements:
(1) a defendant was an agent of an organization, government, or agency; (2) in a one-year period that organization, government, or agency received federal benefits in excess of $10,000; (3) a defendant stole, embezzled, obtained by fraud, knowingly converted, or intentionally misapplied property; (4) that property was owned by, or in the care, custody, or control of, the organization, government, or entity; and (5) the value of that property was at least $5,000.
Like Section 201, Section 666 requires proof of a quid pro quo and tangible and intangible things qualify as quid.
In a Section 666 prosecution, the government does not need to prove that the federal funds were implicated in the bribery scheme, the $5,000 threshold refers to the value of the business or transaction sought to be influenced, not to the value of the bribe itself, and may be aggregated so long as it falls with the one-year period. Courts have generally declined to extend McDonnell’s official acts definition to Section 666 prosecutions.
Section 666 has been criticized in the past for its breathtaking scope and the Supreme Court recently granted certiorari on a significant Section 666 case involving the Bridgegate scandal, which may suggest future reckoning with the misapplication prong of the statute.
Hobbs Act Extortion
The Hobbs Act, 18 U.S.C. Section 1951, makes it a crime to obtain property from another with consent induced under the color of official right with a de minims effect on interstate commerce. “Property” under the Hobbs Act, like things of value in the aforementioned statutes, can be tangible and intangible. However, the statute requires deprivation and acquisition of property, meaning that the property extorted must be transferable.
One court described it as akin to “an alienable economic or contractual right that carries forward into the future.” This defining feature of Hobbs Act property gives greater specificity to what the quid must be over Sections 201 and 666.
Like those statutes though, a quid pro quo is required for a Hobbs Act prosecution. And like Section 201, “the official and the payor need not state the quid pro quo in express terms:” knowing winks and nods are sufficient and proof of inducement may be implied from “words and actions.”
McDonnell involved a Hobbs Act prosecution, therefore, its definition of official act governs.
A Hobbs Act extortion charge may fit the bill for particularly heavy-handed corruption schemes involving shakedowns and lends great jury appeal in factual scenarios where bribe payors are couched as being more akin to victims rather than illicit players.
Honest Services Fraud and the Travel Act
The use of mail, wires and interstate commerce facilities during the course of a corruption scheme implicates two other important statutes. The mail and wire fraud statutes, 18 U.S.C. Sections 1341 and 1343, make it unlawful for any person, “having devised or intending to devise any scheme or artifice to defraud,” to use interstate wires or mails “for the purpose of executing such scheme or artifice.”
The term “scheme or artifice to defraud” includes depriving “another of the intangible right of honest services” under 18 U.S.C. Section 1346. The government must prove, among other things, that a person owed a duty of honest services to the public and that the defendant participated in a scheme to defraud the public of that person’s honest services, which the Supreme Court has held to encompass “only bribery and kickback schemes.”
For any honest services prosecution, the charged conduct must involve a quid pro quo, but not a specific type of bribery, and McDonnell’s official acts definition applies to honest services prosecutions.
Honest services is a versatile statute that allows prosecutors to charge lengthy, complex schemes that involve a stream of benefits over time, not just singly negotiated deals. Honest services does not require that each quid be linked to a specific quo, giving the government a tremendous tactical advantage in terms of cabining the conduct and framing the narrative for the jury.
The Travel Act, 18 U.S.C. Section 1952(a)(3)(A), criminalizes whoever “uses the mail or any facility in interstate or foreign commerce, with intent to ... promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on ... any unlawful activity.”
“[U]nlawful activity” is defined as, among other things, “bribery ... in violation of the laws of the State in which committed.”
The Travel Act allows the government to bring a state bribery charge in federal court if a jurisdictional nexus is present. Use of a facility in interstate commerce is less than what is required by the wire fraud statute; even an intrastate telephone call may be sufficient if it is used to carry on the bribery scheme. State law applies, including any available defenses, and McDonnell’s official acts definition does not apply.
Proof of a quid pro quo will depend on the contours of the particular state’s bribery law, but the Travel Act provides a powerful backstop for the government; the statute provides a generous insurance policy based on an alternative theory if the federal statutes are unpersuasive to a jury.
There remain other available public corruption statutes not mentioned here, however, the aforementioned are among the most commonly used and litigated. There is significant common law that defines what a quid pro quo means for these crimes.
This does not mean, however, that there will not be additional statutes in the future. House Resolution 4140, the “Foreign Extortion Prevention Act,” seeks to amend Title 18 of the United States Code to prohibit a foreign official from demanding a bribe, and for other purposes. Whether the proposed legislation passes and expands the definition of what a quid pro quo will mean for the future will be for Congress and ultimately courts to decide.
Luke Cass is a partner at Quarles & Brady LLP and prosecuted public corruption offenses previously as an assistant U.S. attorney and trial attorney with the U.S. Department of Justice’s Public Integrity Section.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 18 U.S.C. § 201(b).
 18 U.S.C. § 201(a)(1) (the term “public official” means “Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.”).
 United States v. Dixson, 465 U.S. 482, 496 (1984) (“To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of section 201 and liable for prosecution under the federal bribery statute.”).
 United States v. Cerilli, 603 F.2d 415, 435 (3d Cir. 1979).
 United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999); United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998).
 United States v. Terry, 707 F.3d 607, 612-13 (6th Cir. 2013) (noting that “specific,” “express,” and
“explicit” do not add a new element to [ ] bribery statutes “but signal that the statutory requirement must be met,” and “[a]s most bribery agreements will be oral and informal, the question is one of inferences taken from what the participants say, mean and do, all matters that juries are fully equipped to assess”).
 United States v. Schwartz, 785 F.2d 673, 679 (9th Cir.1986).
 United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992).
 United States v. Barraza, 655 F.3d 375, 383-84 (5th Cir. 2011); United States v. Moore, 525 F.3d 1033, 1048 (11th Cir. 2008); United States v. Marmolejo, 89 F.3d 1185, 1193 (5th Cir. 1996).
 United States v. Williams, 705 F.2d 603, 622-23 (2d Cir. 1983).
 McCormick v. United States, 500 U.S. 257, 273 (1991).
 18 U.S.C. § 201(a)(3) (“‘[O]fficial act’ means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.”).
 United States v. Silver, 864 F.3d 102, 116 (2d Cir. 2017).
 McDonnell v. United States, 136 S.Ct. 2355, 2372 (2016).
 United States v. Blagojevich, 794 F.3d 729, 734 (7th Cir. 2015) (… “A proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.”).
 United States v. Finazzo, 704 F.2d 300, 306 (6th Cir. 1983).
 18 U.S.C. § 201(b).
 United States v. Westmoreland, 841 F.2d 572, 577 (5th Cir. 1988).
 United States v. Baroni, 909 F.3d 550, 570 (3d Cir. 2018), cert. granted sub nom. Kelly v. United States, 139 S.Ct. 2777 (2019).
 United States v. Ganim, 510 F.3d 134, 148 n.7 (2d Cir. 2007).
 See Marmolejo, 89 F.3d at 1191.
 Sabri v. United States, 541 U.S. 600, 605 (2004).
 United States v. Bravo-Fernandez, 722 F.3d 1, 13 (1st Cir. 2013).
 United States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008).
 United States v. Boyland, 862 F.3d 279, 291 (2d Cir. 2017); United States v. Suhl, 885 F.3d 1106, 1114 (8th Cir. 2018) (declining to decide whether the § 201(b)(1) official act element applies to § 666); Cf. United States v. Skelos, 707 F. App’x 733, 737–38 (2d Cir. 2017) (although federal-program bribery does not necessarily contain an “official act” requirement, if the Government chooses to charge federal-program bribery under an “official act” theory, the definition set forth in McDonnell applies).
 Kelly v. United States, 139 S.Ct. 2777 (2019).
 18 U.S.C. § 1951(b)(2).
 United States v. Gotti, 459 F.3d 296, 325 (2d Cir. 2006) (“[I]ntangible property can qualify as extortable property under the Hobbs Act”).
 Sekhar v. United States, 570 U.S. 729, 734 (2013).
 United States v. Warme, No. 09-CR-19A, 2010 WL 125846, at *3 (W.D.N.Y. Jan. 7, 2010).
 Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring) (“The requirement of a quid pro quo means that without pretense of any entitlement to the payment, a public official violates § 1951 if he intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied.”).
 See McDonnell, 136 S.Ct. at 2361.
 United States v. Addonizio, 451 F.2d 49, 77 (3d Cir. 1971) (“[T]he essence of the crime of bribery is voluntariness, while the essence of extortion is duress.”).
 Skilling v. United States, 561 U.S. 358, 368 (2010).
 United States v. Bruno, 661 F.3d 733, 743-44 (2d Cir. 2011); see also United States v. Bahel, 662 F.3d 610, 635–36 (2d Cir. 2011).
 United States v. Bryant, 655 F.3d 232, 245 (3d Cir. 2011) (“Skilling did not eliminate from the definition of honest services fraud any particular type of bribery, but simply eliminated honest services fraud theories that go beyond bribery and kickbacks.”); Cf. United States v. Jordan, 364 F. Supp. 3d 670, 677 (E.D. Tex. 2019) (“an honest services wire fraud charge against an official must be based on a violation of a particular bribery statute governing that official's conduct.”).
 United States v. Fattah, 914 F.3d 112, 146 (3d Cir. 2019); United States v. Van Buren, No. 18-12024, 2019 WL 5078229, at *8 (11th Cir. Oct. 10, 2019).
 Ryan v. United States, 688 F.3d 845, 852 (7th Cir. 2012).
 United States v. Solomon, 892 F.3d 273, 277 (7th Cir. 2018); United States v. Wright, 665 F.3d 560, 568 (3d Cir. 2012).
 18 U.S.C. § 1952(b)(i)(2).
 United States v. Giordano, 442 F.3d 30, 39 (7th Cir. 2006).
 United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“The government thus must prove as part of the Travel Act charge that the defendant has or could have violated the underlying state law, and the defendant may assert any relevant substantive state law defense.”).
 United States v. Ferriero, 866 F.3d 107, 128 (3d Cir. 2017) (declining to apply McDonnell to a state bribery statute that served as a predicate offense for a defendant’s Travel Act and RICO convictions).
 One of those is an illegal gratuity under 18 U.S.C. § 201(c)(1). Unlike bribery, the statute requires only that the gratuity be given or accepted “for or because of” an official act, or as a reward for some future act or past act by the public official, and does not require proof of a quid pro quo. Sun-Diamond Growers of California, 526 U.S. at 404–05.