Words and Phrases, Volume 35: Public Officers
United States Constitution: Analysis and Interpretation, U.S. Government Printing Office, 2004, p. 392
"Indeed, there can be no such thing in this country as property in office, although the common law sustained a different view sometimes reflected in early cases. 1974 "
1974 Butler v. Pennsylvania, 51 U.S. (10 How.) 402 (1850). Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803); Hoke v. Henderson, 154 N.C. (4 Dev.) 1 (1833). See also United States v. Fisher, 109 U.S. 143 (1883); United States v. Mitchell, 109 U.S. 146 (1883); Crenshaw v. United States, 134 U.S. 99 (1890)
[United States Constitution: Analysis and Interpretation, U.S. Government Printing Office, 2004, p. 392; https://famguardian.org/PublishedAuthors/Govt/CRS/USConstAnnotated.pdf]
Black’s Law Dictionary,
Abridged 6th Edition, p. 1235:
“Public office. The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. Walker v. Rich, 79 Cal.App. 139, 249 P. 56, 58. An agency for the state, the duties of which involve in their performance the exercise of some portion of the sovereign power, either great or small. Yaselli v. Goff, C.C.A., 12 F.2d. 396, 403, 56 A.L.R. 1239; Lacey v. State, 13 Ala.App. 212, 68 So. 706, 710; Curtin v. State, 61 Cal.App. 377, 214 P. 1030, 1035; Shelmadine v. City of Elkhart, 75 Ind.App. 493, 129 N.E. 878. State ex rel. Colorado River Commission v. Frohmiller, 46 Ariz. 413, 52 P.2d. 483, 486. Where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as de- notes duration and continuance, with Independent power to control the property of the public, or with public functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office. State v. Brennan, 49 Ohio.St. 33, 29 N.E. 593.
[Black’s Law Dictionary, Fourth Edition, p. 1235]
Black’s Law Dictionary,
Fourth Edition, p. 1230:
“Essential characteristics of a ‘public office’ are:
(1)Authority conferred by law,
(2)Fixed tenure of office, and
(3)Power to exercise some of the sovereign functions of government.
(4)Key element of such test is that “officer is carrying out a sovereign
(5)Essential elements to establish public position as ‘public office’
(a)Position must be created by Constitution, legislature, or through
authority conferred by legislature.
(b)Portion of sovereign power of government must be delegated to
(c)Duties and powers must be defined, directly or implied, by legislature
or through legislative authority.
(d)Duties must be performed independently without control of superior
power other than law, and
(e)Position must have some permanency.”
Law Dictionary, Abridged 6th Edition, p. 1230]
63C Am.Jur.2d, Public Officers and Employees, §247
“As expressed otherwise, the powers delegated to a public officer
are held in trust for the people and are to be exercised in behalf
of the government or of all citizens who may need the intervention
of the officer. Furthermore, the view has been expressed that all public officers,
within whatever branch and whatever level of government, and whatever
be their private vocations, are trustees of the people, and accordingly
labor under every disability and prohibition imposed by law upon
trustees relative to the making of personal financial gain from
a discharge of their trusts. That is, a public officer occupies a fiduciary relationship
to the political entity on whose behalf he or she serves.
and owes a fiduciary duty to the public.
It has been said that the fiduciary responsibilities of a public
officer cannot be less than those of a private individual.
Furthermore, it has been stated that any enterprise undertaken by
the public official which tends to weaken public confidence and
undermine the sense of security for individual rights is against
[63C Am.Jur.2d, Public Officers and Employees, §247]
State ex rel. Nagle v Sullivan, 98 Mont 425, 40 P.2d. 995, 99 A.L.R. 321; Jersey City v Hague, 18 N.J. 584, 115 A.2d. 8.
Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543, 291 S.E.2d. 524. A public official is held in public trust. Madlener v. Finley (1st Dist) 161 Ill.App.3d. 796, 113 Ill Dec 712, 515 N.E.2d. 697, app gr 117 Ill Dec 226, 520 N.E.2d. 387 and revd on other grounds 128 Ill.2d. 147, 131 Ill.Dec. 145, 538 N.E.2d. 520.
Chicago Park Dist. V. Kenroy, Inc., 78 Ill.2d. 555, 37 Ill.Dec. 291, 402 N.E.2d. 181, appeal after remand (1st Dist) 107 Ill.App.3d. 222, 63 Ill.Dec.134, 437 N.E.2d. 783.
United States v. Holzer (CA7 Ill) 816 F.2d. 304 and vacated, remanded on other grounds 484 U.S. 807, 98 L.Ed.2d. 18, 108 S.Ct. 53, on remand (CA7 Ill) 840 F.2d. 1343, cert den 486 U.S. 1035, 100 L.Ed.2d. 608, 108 S.Ct. 2022 and (criticized on other grounds by United States v. Osser (CA3 Pa) 864 F.2d. 1056) and (superseded by statute on other grounds as stated in United States v Little (CA5 Miss) 889 F.2d. 1367) and (among conflicting authorities on other grounds noted in United States v. Boylan (CA1 Mass) 898 F.2d. 230, 29 Fed.Rules.Evid.Serv. 1223).
Chicago ex rel. Cohen v Keane, 64 Ill.2d. 559, 2 Ill.Dec. 285, 357 N.E.2d. 452, later proceeding (1st Dist) 105 Ill.App.3d. 298, 61 Ill.Dec. 172, 434 N.E.2d. 325.
Indiana State Ethics Comm'n v. Nelson (Ind App) 656 N.E.2d. 1172, reh gr (Ind App) 659 N.E.2d. 260, reh den (Jan 24, 1996) and transfer den (May 28, 1996).
The "Trade or Business" Scam-nearly all "taxpayers" under
I.R.C. Subtitle A are "public officers" of the United States Government
PDF Version (OFFSITE LINK)
Officers of the
United States Within the Meaning of the Appointments Clause, U.S. Attorney Memorandum Opinion
A Treatise on the Law of Agency in Contract and Tort-George Reinhard, 1902. Google Books
Treatise on Public Offices and Public Officers-Floyd Mechem,
1890. Google Books
IRS: Government Official
A government official may be a disqualified person for the tax on self-dealing. However, the tax will be imposed only if the government official knows that the act is an act of self-dealing.
The term government official means an individual who at the time of the act of self-dealing holds any of the following offices or positions:
- An elective public office in the executive or legislative branch of the United States Government,
- An office in the executive or judicial branch of the U.S. Government, appointment to which was made by the President,
- A position in the executive, legislative or judicial branch of the U.S. Government—
- a. Which is listed in Schedule C of Rule VI of the Civil Service Rules, or
- b. The compensation for which is at least equal to the lowest rate prescribed for GS-16 of the General Schedule under 5 U.S.C. 5332,
- A position under either the U.S. House of Representatives or the U.S. Senate, held by an individual who receives gross annual pay of at least $15,000 (including expense allowances for which no accounting need be made),
- An elective or appointive public office in any branch of the government of any state, possession of the United States, or any subdivision of the foregoing, or the District of Columbia, held by an individual who receives gross annual pay of at least $20,000, or
- A position as personal or executive assistant or secretary to any individual already described.
Public office. For the purpose of (5), a holder of public office must be distinguished from a public employee. Although the determination depends on the facts and circumstances of each case, the essential element is whether a significant part of the activities of the individual is the independent performance of policymaking functions. Factors to be considered include that the office is created by the Congress, a state constitution, or state legislature, or by a municipality or other governmental body under powers created in it, and the duties to be discharged by the office are defined either directly or indirectly by the body that created it or through legislative authority.
Examples. The following illustrate positions of public employment that do not involve policymaking functions and are not a public office:
[Private Foundations: Government Official, Internal Revenue Service, 8/21/2020]
- The chancellor, president, provost, dean and other officers of a state university who are appointed, elected or otherwise hired by a State Board of Regents or equivalent public body and who are subject to the direction and supervision of that body,
- The superintendent of public schools and other public school officials who are appointed, elected or otherwise hired by a Board of Education or equivalent public body and who are subject to the direction and supervision of that body, or
- Members of police and fire departments, except for department heads who, under the facts and circumstances of the case, independently perform policymaking functions as a significant part of their activities.
5 U.S.C. 2104: Officer
5 U.S. Code § 2104.Officer
For the purpose of this title, “officer”, except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is—
required by law to be appointed in the civil service by one of the following acting in an official capacity—
a court of the United States;
the head of an Executive agency; or
engaged in the performance of a Federal function under authority of law or an Executive act; and
subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office.
Except as otherwise provided by law, an officer of the United States Postal Service
or of the Postal Regulatory Commission
is deemed not an officer for purposes of this title.
(Pub. L. 89–554
, Sept. 6, 1966
, 80 Stat. 408
; Pub. L. 91–375, § 6(c)(3)
, Aug. 12, 1970
, 84 Stat. 775
; Pub. L. 109–435, title VI, § 604(b)
, Dec. 20, 2006
, 120 Stat. 3241
Blacks Law Dictionary, Fourth Edition, p. 1234: Office
OFFICE. Right to exercise public or private employment, and to take the fees and emoluments thereunto belonging, whether public, as those of magistrates, or private, as of bailiffs, receivers, or the like. 2 B1.Comm. 36. Blair v. Marye, 80 Va. 495; Worthy v. Barrett, 63 N.C. 202; Shelf. Mortm. 797; Cruise, Dig. Index; Com. v. Sutherland, 3 S. & R., Pa., 149. A right, and correspondent duty, to exercise a public trust. Whitehead v. Clark, 146 Tenn. 660, 244 S.W. 479, 482. A public charge or employment; U. S. v. Maurice, 2 Brock. 102, Fed. Cas. No. 15,747, per Marshall, C. J.; Lamar V. Splain, 42 App.D.C. 300, 305. An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental.
See Eason v. Majors, 111 Neb. 288, 196 N.W. 133,134,30 A.L.R. 1419.
An "assigned duty" or "function." Synonyms are"post", "appointment", "situation", "place", "position", and "of8ce" commonly suggests a posltlon of (especially publlc) trust or authority. Also rlght to exercise a publlc function or employment, and to take the fees and emoluments belonging to it. Frazler v. Elmore, 180 Tenn. 232, 173 S.W.2d. 563, 565. A publlc charge or employn~ent, and he who performs the dutles of the omce is an offlcer. Although an o5ce is an employment, it does not follow that every employment is an office. A man may be employed
under a contract, express or implied, to do an act, or to perform a servlce, without becoming an omcer. But, if the duty be a contlnulng one, which Is deflned by rule prescribed by the government, whlch an individual is appofnted by the government to perform, who enters upon the dutles appertaining to his status, without any contract deflning them, it seems very dimcult to dlstlnguish such a
charge or employment from an office, or the person who performs the duty from an officer. Lacy v. State, 13 Ala. App. 212, 68 So. 706, 710. In the constitutional sense, the term implies an authority to exercise some portlon of the soverelgn power, elther in making, executing, or adminlster ln the laws. State v. Christmas, 126 Mlss. 358, 88 So. 881, 882.
The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connection, "public ofice" is a usual and more discriminating expression. But a power and duty may exist without immediate grant from government, and may be properly called an "office;" as the office of executor, the office of steward. Here the individual acts towards legatees or towards tenants in performance of a duty, and in exercise of a power not derived from their consent, but devolved on him by an authority which quoad hoc is superior. Abbott.
A place for the regular transaction of business. Bradley v. Certigue Mining & Dredging Co., 157 N.Y.S. 275,276.93 Misc. 519. For the word "office" as used of a place for transacting public business, see Com. v. White, 6 Cush., Mass., 181."Oface" is frequently used in the old books as an abbreviation for "inquest of office," (q. v.).
As to various particular ofaces, see Land Office, Petty Bag OfEce, Post Office, etc.
[Black's Law Dictionary, Fourth Edition, p. 1234]
26 C.F.R. §1.1402(c)-2: Public Office
26: Internal Revenue
PART 1—INCOME TAXES
TAX ON SELF-EMPLOYMENT INCOME
§ 1.1402(c)-2 Public office.
(a) In general—(1) General rule. Except as otherwise
provided in subparagraph (2) of this paragraph, the performance
of the functions of a public office does not constitute a trade
26 C.F.R. §1.864-7: Definition of office
or other fixed place of business
[Code of Federal Regulations]
[Title 26, Volume 9]
as of April 1, 2006]
From the U.S. Government Printing Office
via GPO Access
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE,
DEPARTMENT OF THE TREASURY
PART 1_INCOME TAXES--Table of Contents
1.864-7 Definition of office or other fixed place of business.
(a) In general.
(1) This section applies
for purposes of determining whether a nonresident alien individual
or a foreign corporation that is engaged in a trade or business
in the United States at some time during a taxable year beginning after December 31, 1966, has an office or other fixed
place of business in the United States for purposes of applying
section 864(c)(4)(B) and Sec. 1. 864-6 to income, gain, or
loss specified in paragraph (b) of Sec. 1.864-5 from sources
without the United States or has an office or other fixed place
of business outside the United States for purposes of applying section
864(c)(4)(B)(iii) and paragraph (b)(3)(i) of Sec. 1.864-6
to sales of goods or merchandise for use, consumption, or disposition
outside the United States.
(2) In making a
determination under this section due regard shall be given to the
facts and circumstances of each case, particularly to the nature
of the taxpayer's trade or business and the physical facilities
actually required by the taxpayer in the ordinary course of the
conduct of his trade or business.
law of a foreign country shall not be controlling in determining
whether a nonresident alien individual or a foreign corporation
has an office or other fixed place of business.
(b) Fixed facilities--
(1) In general. As a
general rule, an office or other fixed place of business is a fixed
facility, that is, a place, site, structure, or other similar facility,
through which a nonresident alien individual or a foreign corporation
engages in a trade or business. For this purpose an office
or other fixed place of business shall include, but shall not be
limited to, a factory; a store or other sales outlet; a workshop;
or a mine, quarry, or other place of extraction of natural resources.
A fixed facility may be considered an office or other fixed place
of business whether or not the facility is continuously used by
a nonresident alien individual or foreign corporation.
(2) Use of another person's office or other fixed place of business. A nonresident alien individual or a foreign corporation shall
not be considered to have an office or other fixed place of business
merely because such alien individual or foreign corporation uses
another person's office or other fixed place of business,
whether or not the office or place of business of a related person,
through which to transact a trade or business, if the trade or business
activities of the alien individual or foreign corporation in that
office or other fixed place of business are relatively sporadic
or infrequent, taking into account the overall needs and conduct
of that trade or business.
[NOTE: You can't have
a "public office" until you have an "office", and you don't have
one of these either!]
18 U.S.C. §201 Bribery of public officials
TITLE 18 > PART I > CHAPTER 11 > § 201
§ 201. Bribery of public officials and witnesses
(a) For the purpose of this section—
(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
Osborn v. Bank of U.S., 22 U.S. 738 (1824)
“All the powers of the government must
be carried into operation by individual agency, either through the
medium of public officers, or contracts made with individuals.
Can any public office be created, or does one exist, the performance
of which may, with propriety, be assigned to this association
[or trust], when incorporated? If such office exist, or can be created,
then the company may be incorporated, that they may be appointed
to execute such office. Is there any portion of the public business
performed by individuals upon contracts, that this association could
be employed to perform, with greater advantage and more safety to
the public, than an individual contractor? If there be an employment
of this nature, then may this company be incorporated to undertake
There is an employment of this nature. Nothing can be more essential to the fiscal concerns of the nation,
than an agent of undoubted integrity and established credit, with
whom the public moneys can, at all times, be safely deposited. Nothing
can be of more importance to a government, than that there should
be some capitalist in the country, who possesses the means of making
advances of money to the government upon any exigency, and who is
under a legal obligation to make such advances. For these purposes
the association would be an agent peculiarly suitable and appropriate.
[. . .]
The mere creation of a corporation, does not
confer political power or political character. So this Court decided
in Dartmouth College v. Woodward, already referred to. If I may
be allowed to paraphrase the language of the Chief Justice, I would
say, a bank incorporated, is no more a State instrument, than a
natural person performing the same business would be. If, then,
a natural person, engaged in the trade of banking, should contract
with the government to receive the public money upon deposit, to
transmit it from place to place, without charging for commission
or difference of exchange, and to perform, when called upon, the
duties of commissioner of loans, would not thereby become a public
officer, how is it that this artificial being, created by law for
the purpose of being employed by the government for the same purposes,
should become a part of the civil government of the country? Is
it because its existence, its capacities, its powers, are given
by law? because the government has given it power to take and hold
property in a particular form, and to employ that property for particular
purposes, and in the disposition of it to use a particular name?
because the government has sold it a privilege [22 U.S. 738, 774] for
a large sum of money, and has bargained with it to do certain things;
is it, therefore, a part of the very government with which the contract
If the Bank be constituted a public
office, by the connexion between it and the government, it cannot
be the mere legal franchise in which the office is vested; the individual
stockholders must be the officers. Their character is not
merged in the charter. This is the strong point of the Mayor and
Commonalty v. Wood, upon which this Court ground their decision
in the Bank v. Deveaux, and from which they say, that cause could
not be distinguished. Thus, aliens may become public officers, and
public duties are confided to those who owe no allegiance to the
government, and who are even beyond its territorial limits.
With the privileges and perquisites
of office, all individuals holding offices, ought to be subject
to the disabilities of office. But if the Bank be a public office,
and the individual stockholders public officers, this principle
does not have a fair and just operation. The disabilities
of office do not attach to the stockholders; for we find them every
where holding public offices, even in the national Legislature,
from which, if they be public officers, they are excluded by the
constitution in express terms.
If the Bank be a public institution of
such character as to be justly assimilated to the mint and the post
office, then its charter may be amended, altered, or even abolished,
at the discretion of the National Legislature. All public offices
are created [22 U.S. 738,
775] purely for public purposes, and may, at
any time, be modified in such manner as the public interest may
require. Public corporations partake of the same character. So it
is distinctly adjudged in Dartmouth College v. Woodward. In this
point, each Judge who delivered an opinion concurred. By one of
the Judges it is said, that 'public corporations are generally
esteemed such as exist for public political purposes only, such
as towns, cities, parishes and counties; and in many respects they
are so, although they involve some private interests; but, strictly
speaking, public corporations are such only as are founded by the
government for public purposes, where the whole interest belongs
also to the government. If, therefore, the foundation be
private, though under the charter of the government, the corporation
is private, however extensive the uses may be to which it is devoted,
either by the bounty of the founder, or the nature and objects of
the institution. For instance, a bank, created by the government
for its own uses, whose stock is exclusively owned by the government,
is, in the strictest sense, a public corporation. So, a hospital
created and endowed by the government for general charity. But a
bank, whose stock is owned by private persons, is a private corporation,
although it is erected by the government, and its objects and operations
partake of a public nature. The same doctrine may be affirmed of
insurance, canal, bridge, and turnpike companies. In all these cases,
the uses may, in a certain sense, be called public, but the
corporations are private; as much [22 U.S. 738,
776] so, indeed, as if the franchises were vested in a single person.[. . .]
In what sense is it an instrument of the government?
and in what character is it employed as such? Do the government
employ the faculty, the legal franchise, or do they employ the individuals
upon whom it is conferred? and what is the nature of that employment?
does it resemble the post office, or the mint, or the custom house,
or the process of the federal Courts?
The post office is established by the general
government. It is a public institution. The persons who perform
its duties are public officers. No individual has, or can acquire,
any property in it. For all the services performed, a compensation
is paid out of the national treasury; and all the money received
upon account of its operations, is public property. Surely there
is no similitude between this institution, and an association who
trade upon their own capital, for their own profit, and who have
paid the government a million and a half of dollars for a legal
character and name, in which to conduct their trade.
Again: the business conducted through the
agency of the post office, is not in its nature a private business.
It is of a public character, and the [22 U.S. 738, 786] charge
of it is expressly conferred upon Congress by the constitution.
The business is created by law, and is annihilated when the law
is repealed. But the trade of banking is strictly a private concern.
It exists and can be carried on without the aid of the national
Legislature. Nay, it is only under very special circumstances, that
the national Legislature can so far interfere with it, as to facilitate
The post office executes the various duties
assigned to it, by means of subordinate agents. The mails are opened
and closed by persons invested with the character of public officers.
But they are transported by individuals employed for that purpose,
in their individual character, which employment is created by and
founded in contract. To such contractors no official character is
attached. These contractors supply horses, carriages, and whatever
else is necessary for the transportation of the mails, upon their
own account. The whole is engaged in the public service. The contractor,
his horses, his carriage, his driver, are all in public employ.
But this does not change their character. All that was private property
before the contract was made, and before they were engaged in public
employ, remain private property still. The horses and the carriages
are liable to be taxed as other property, for every purpose for
which property of the same character is taxed in the place where
they are employed. The reason is plain: the contractor is employing
his own means to promote his own private profit, and the tax collected
is from the individual, though assessed upon the [22 U.S. 738, 787] means
he uses to perform the public service. To tax the transportation
of the mails, as such, would be taxing the operations of the government,
which could not be allowed. But to tax the means by which this transportation
is effected, so far as those means are private property, is allowable;
because it abstracts nothing from the government; and because, the
fact that an individual employs his private means in the service
of the government, attaches to them no immunity whatever.”
[Osborn v. Bank of
U.S., 22 U.S. 738 (1824)]
Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)
object of the Constitution is to permit citizens to structure their
private relations as they choose subject only to the constraints
of statutory or decisional law. [500 U.S.
these principles, courts must consider from time to time where the
governmental sphere [e.g. “public purpose” and “public office”]
ends and the private sphere begins. Although the conduct of private
parties lies beyond the Constitution's scope in most instances,
governmental authority may dominate an activity to such an extent
that its participants must be deemed to act with the authority of
the government and, as a result, be subject to constitutional constraints. This is the jurisprudence of state action, which explores the "essential
dichotomy" between the private sphere and the public sphere, with
all its attendant constitutional obligations. Moose Lodge, supra,
at 172. “
[. . .]
Given that the statutory authorization
for the challenges exercised in this case is clear, the remainder
of our state action analysis centers around the second part of the
Lugar test, whether a private litigant, in all fairness, must be
deemed a government actor in the use of peremptory challenges. Although
we have recognized that this aspect of the analysis is often a fact-bound
inquiry, see Lugar, supra, 457 U.S. at 939, our cases disclose certain
principles of general application. Our precedents establish
that, in determining whether a particular action or course of conduct
is governmental in character, it is relevant to examine the following:
the extent to which the actor relies on governmental assistance
and benefits, see Tulsa Professional Collection Services, Inc. v.
Pope, 485 U.S. 478 (1988); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); whether the the actor is performing
a traditional governmental function, see Terry v. Adams, 345 U.S. 461 (1953); Marsh v. Alabama, 326 U.S. 501 (1946); cf. San Francisco Arts & Athletics,
Inc. v. United States Olympic [500 U.S. 614, 622] Committee, 483 U.S. 522, 544 -545 (1987); and whether the injury
caused is aggravated in a unique way by the incidents of governmental
authority, see Shelley v. Kraemer, 334 U.S. 1 (1948). Based on our application of these three principles
to the circumstances here, we hold that the exercise of peremptory
challenges by the defendant in the District Court was pursuant to
a course of state action.
v. Leesville Concrete Company, 500 U.S. 614 (1991)]
McNally v. United States, 483 U.S. 350 (1987)
its elementary common law sense of deceit -- and this is one of the
meanings that fraud bears [483 U.S. 372] in the statute, see United
States v. Dial, 757 F.2d 163, 168 (7th Cir.1985) -- includes the deliberate
concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including,
in the case of a judge, the litigants who appear before him, and if
he deliberately conceals material information from them, he is guilty
of fraud. When a judge is busily soliciting loans from counsel to one
party, and not telling the opposing counsel (let alone the public),
he is concealing material information in violation of his fiduciary
* * * *
Second, the systematic and
long-continued receipt of bribes by a public official, coupled with
active efforts to conceal the bribe-taking from the public and the authorities
. . . is fraud (again in its elementary sense of deceit, and quite possibly
in other senses as well), even if it is the public, rather than counsel,
that is being kept in the dark. It is irrelevant that, so far as appears,
Holzer never ruled differently in a case because of a lawyer's willingness
or unwillingness to make him a loan, so that his conduct caused no demonstrable
loss either to a litigant or to the public at large. See, e.g., United
States v. Keane, 622 F.2d 534, 541, 546 (7th Cir.1975); United States
v. Lovett, 811 F.2d 979, 985 (7th Cir.1987); United States v. Manton,
107 F.2d 834, 846 (2d Cir.1939). How can anyone prove how a judge would
have ruled if he had not been bribed?
v. United States, 483 U.S. 350 (1987)]