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Buckley Commentary & Analysis

"Why doesn’t McDonnell apply to foreign bribery?" by Nadav Ariel

Nadav Ariel

Two circuit courts recently concluded that the Supreme Court’s McDonnell decision, which limited the scope of acts that constitute domestic bribery, does not apply in cases alleging bribery of foreign officials. The immediate consequence of the decisions from the U.S. Court of Appeals for the Second Circuit and the U.S. Court of Appeals for the Ninth Circuit is a more expansive standard for foreign bribery than for domestic corruption. That result may not be lasting, however, as both decisions run counter to the Supreme Court’s significant concerns about prosecutorial discretion to criminalize legitimate conduct of government officials responding to their constituents.

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