Discovering Secrets: Act of State Defenses to Bribery Cases

Abstract

Prosecution of white collar crime, particularly grand corruption bribery, is increasing. High-level bribery is structurally similar to illegal drug cartels and terrorist organizations. Bribe-givers are serviced by multinational networks of attorneys and bankers – the “gatekeepers”.

The prosecution of New York attorney and banker, James H. Giffen, in the Southern District of New York generated a pair of landmark opinions on significant issues of first impression rejecting act of state doctrine defenses to bribery cases. Act of state doctrine defenses involve complex legal issues at obscure intersections of U.S. criminal law, constitutional law, conflicts of law, and international comity.

The first opinion in the Giffen case provides helpful precedent on a central legal hurdle facing prosecutors developing cases – discovering the facts of bribery schemes where documents are ostensibly protected by foreign law. The second opinion arose in an important factual context, where the alleged U.S. bribe-giver also held official titles inside a foreign government.

That the U.S. Department of Justice was apparently not undermined in the Giffen case despite the best efforts of powerful U.S. lobbyists and law firms in a case allegedly involving $105 million in bribes from major oil companies should not be worthy of a law review article under normal circumstances. The prosecution of the Giffen case, at the time the largest in the history of the Foreign Corrupt Practices Act, during one of the darkest periods in the history of the U.S. Department of Justice, demonstrates the rule of law operating even handedly, even when major oil interests are at stake.