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Page 25 of 42 103 Minn. L. Rev. 844, *891 enforcement can learn of misconduct done mostly in secret, political or personal incentives for enforcement officials that discourage zealous enforcement can exist for enforcement officials in the same jurisdiction - perhaps enmeshed in the same political networks. In short, underenforcement in this realm follows more from favoritism toward offenders than the biases against victim groups or types of offenses. "Corruption" is a notoriously hard concept to define, '*° but that difficulty is actually somewhat useful for present purposes. Some of what constitutes public corruption is relatively clearly [*892] defined in positive law. Easy cases involve straightforward property theft or embezzlement, quid pro quo bribery, and extortion. '*! Statutes also make clear at least some cases of illegal gratuities and breaches of regulations that govern activities such as campaign finance. '** More ambiguous or marginal cases of alleged corruption, however, illustrate the federal government's ambitious commitment to enforcing broad interpretations of federal anti-corruption laws to conduct of state and local officials. That enforcement track record demonstrates the strong commitment to enforcement redundancy in this area. States have their own regulatory strategies to address government corruption, although independent assessments do not judge them to be particularly successful. '°? The federal government seems to share that view. The Justice Department created a Public Integrity Section within the Criminal Division in 1976, !>4 and in the four decades since, federal prosecutors have [*893] aggressively prosecuted conduct of state and local officials that it determines breaches federal anti-corruption statutes. 'S> For the past two decades, federal anti-corruption prosecutions of state and local officials typically average 350-400 per year. 156 Combatting "public corruption" is a top priority for the Federal Bureau of Investigation, on par with combating threats of terrorism, foreign espionage, and cyber-warfare. '!*7 And many of these prosecutions targeted wrongdoing far removed from property theft or quid pro quo bribery. !°8 They extend to conduct involving undue influence, breaches of fiduciary duty, or failure to provide citizens with "honest services" 1°? 160 - wrongdoing for which the public harm is sometimes hard to identify. [#894] By some accounts, including the U.S. Supreme Court's on occasion, 1°! this enforcement agenda has been overly aggressive. '°? But Congress has generally encouraged far-reaching federal enforcement, notably by expanding the scope of federal anti-corruption law in response to narrow judicial interpretation. !®? And the key point here is that the federal executive Crime Victims are Criticized, Irish Times (Nov. 16, 2015), hitp:/Awww.irishtimes.com/news/crime-and-law/new-laws-on-rights-of -crime- victims-are-criticised-1.2431095. By contrast, seeSinger v. United States, 380 U.S. 24, 34-37 (1965) (holding that due to judicial "confidence in the integrity of the federal prosecutor," U.S. attorneys need not give reasons for refusing to consent to defendant's waiver of jury trial). For rare examples of U.S. rules requiring prosecutors to give reasons for not charging, see Colo. Rev. Stat. § 16-5-209 (2014) (requiring prosecutor's reasons upon private complaint objecting to non-prosecution); Pa. R. Crim. P. 506. 14 Review within the U.S. Justice Department hierarchy is mandated by /8 U.S.C. § 3771(f) (2016); see also id. § 3771(f)(2)(D) (protecting Justice Department decisions from judicial review). MS See 18 U.S.C. § 3771(a)(5). 116 The Availability of Crime Victims’ Rights Under the Crime Victims' Rights Act of 2004, 35 Op. O.L.C. 8 (2010). For a vigorous argument against the OLC position, see Paul Cassell et al., Crime Victims’ Rights During Criminal Investigations? Applying the Crime Victims' Rights Act Before Criminal Charges Are Filed, /04 J. Crim. I. & Criminology 59, 61-63 (2014) (arguing for victims’ right to confer and that the right to fair treatment extends to pre-charging stage). 7 Doe v. United States, 950 F. Supp. 2d 1262, 1267-68 (S.D. Fla. 2013) (re-opening and setting aside a pre-charge non-prosecution agreement between prosecutors and defense because prosecutor had not consulted with victim in violation of 18 U.S.C. § 3771). 8 See In re Dean, 527 F.3d 391, 395 (5th Cir. 2008) (acknowledging lower court's interpretation of § 3771(a) before any prosecution is underway); Does v. United States, 817 F. Supp. 2d 1337, 1342-45 (SD. Fla. 2011) (recognizing that 1/8 U.S.C. § 3771(a) can apply before formal charges are filed); Jordan v. Dep't of Justice, 173 F. Supp. 3d 44, 52 (S.D.N.Y. 2016) (citing In re Dean, 527 F.3d at 395); United States v. BP Prod. N. Am., Inc., No. H-07-434, 2008 WL 501321, at 11 (S.D. Tex. Feb. 21, 2008) (discussing /8 U.S.C. § 377] and a broad duty to confer before charges are filed). Another district court refused prosecutors' request to dismiss charges before the prosecutor consulted the victim. United States v. Heaton 458 F. Supp. 2d 1271, 1272 (D. Utah 2006) (citing victim's right under /8 U.S.C. § 3771](a)(8) "to be treated with fairness and with respect for [her] dignity and privacy"). DAVID SCHOEN HOUSE_OVERSIGHT_016534