Corrupt

This post originally appeared at Issue One

The 2016 election will be remembered for many things, but particularly for the widespread appeal of the calls to clean up Washington made by Sen. Bernie Sanders (I-VT) and Donald Trump.

The Supreme Court, too, has felt renewed attention on its decisions following a recent string of major campaign finance and money-in-politics cases, most prominently Citizens United in 2010. McCutcheon and Williams-Yulee in the last two years have also added to the constitutional canon of campaign finance law, albeit in two different directions.

The case of McDonnell v. United States is different, instead dealing with the ethics and potential corrupting effects of gifts and relationships with our elected leaders, rather than just campaign donations. Regardless, it will stoke the growing debate over money and its influence in our politics and government.

 

What did Robert McDonnell do?

Robert McDonnell was already the Governor of Virginia when he began to accept gifts from Jonnie Williams, a wealthy businessman who was courting McDonnell to help with his dietary supplement company, Star Scientific. Put simply, McDonnell and his wife, Maureen, were drowning in debt in the wake of the financial crisis and needed help to stay afloat. Enter Williams, who promised to alleviate their debt with loans and more. In return, it was implied McDonnell would help Williams get FDA approval for his dietary supplement, Anatabloc, by trying to persuade Virginia public universities to do the necessary research so Williams’s company wouldn’t have to pay for it. McDonnell and his wife received more than $175,000 in loans, shopping sprees, vacations and other gifts from Williams. He even paid for their daughter’s wedding.

Those actions by McDonnell are in question in his appeal before the Supreme Court. McDonnell has lost both before a jury and the Court of Appeals for the Fourth Circuit, but his appeal to the highest court in the land seemed more promising. Not only did the Court agree to hear a case which had been resolved the same way twice already, they granted temporary relief from prison to McDonnell, a sign that at least four Justices were eager to keep him out of the clink.

 

What are the arguments in the case?

Governor McDonnell, a rising star in the Republican Party before his fall from grace in 2014, contends that the corruption statutes on the books, specifically the Hobbs Act and the honest services statutes used for his conviction, are simply too vague to be functional. McDonnell was only giving access to Williams, which is allowed and, in fact, an important part of representative government. There’s no limiting principle; that is, there’s no lower limit to determine what is actual corruption and what is politics-as-usual—and without this limit, McDonnell contends, a politician can be charged for corruption for simply having lunch with a constituent or setting up a meeting for a donor.

But that’s not what happened in this case, says the government in its brief. This is a cut-and-dry case of corruption, short of actually saying the phrase “I’ll do this for you if you do that for me.” If prosecutors’ ability to litigate was limited to only explicit instances of bribery, which just about never happens, corruption would run rampant.

 

“Official Acts”

The real question in the case revolves around how we define “official acts,” the conduct that constitutes the quo part of a quid pro quo (Latin for “this for that,” or for lack of a better word, a bribe).

But that’s a pretty tough phrase to define, especially when the laws are so vague. McDonnell argues for a narrower definition: only official government decisions, as opposed to ingratiation and access. They cite Skilling v. U.S., a 2010 case surrounding an Enron executive, in which the Court ruled the Constitution requires narrow readings of criminal statutes. But the government counters with U.S. v. Bencivengo, a 2014 case from the 3rd Circuit, which held that the simple agreement to exercise influence is sufficient to warrant an extortion conviction. The government also argues that the corruption laws are purposefully broad: to capture a larger range of actions without enumerating them. To require such specificity would jeopardize all potential prosecution of corrupt behavior in our elected officials.

But what are the “official acts” in question? There are the five listed by the government:

  • Asking the Secretary of Health to send an aide to meet with Williams and Mrs. McDonnell to discuss clinical trials at public Virginia universities;
  • Attending a lunch arranged by Mrs. McDonnell at the Executive Mansion at which Williams’s company, Star Scientific, gave $200,000 to Virginia universities to prepare research proposals;
  • Requesting a meeting via email with his legal counsel to discuss why the the universities were not returning Star Scientific’s calls;
  • Introducing one of Williams’s associates, a doctor, at a reception for leaders in healthcare at the Executive Mansion;
  • Consuming an Anatabloc supplement at a meeting about Virginia state employees’ health plan and noting the supplement had been working well for him, implying that it should be included in their plans.

McDonnell would often make calls to relevant individuals within minutes of talking about loans with Williams, further drawing a connection between Williams’s gifts and McDonnell’s actions.

And though the plan ultimately failed and the Virginia universities never agreed to research the supplements, the government has continued their suit, arguing that the failure of a corrupt bargain doesn’t make it any less corrupt.

 

What happened in oral argument?

Oral argument was lopsided. Most Justices, especially Justice Breyer, expressed discontent with McDonnell’s position but total disagreement with the government’s. Neither side offered a solid delineation between politics-as-usual and corruption, and, to be fair, the question is rather difficult to answer without slipping into creating artificial divisions, hardly the time-tested stable standard we need to make our laws.

A few Justices, especially Justice Sotomayor, noted that being called on by the governor would be tantamount to being pressured by him, but that defense faltered next to the “everyone does it” defense—that gifts to the individual that result in access are simply an inextricable part of our political world. Citing Citizens United, which held the legality of campaign contributions in return for “ingratiation and access,” McDonnell argued broadening interpretations of corruption laws would render routine behavior severely criminal.

What comes next?

Regardless of the result, we need a more open discussion about our corruption laws. Justice Breyer et al. are right: our laws are vague and they allow politicians to get away with dishonest behavior. This conversation is needed at all levels of government.  Virginia’s state assembly responded appropriately to their governor’s scandal: they passed stricter corruption laws that prevent actions like McDonnell’s from going unpunished.

What did the Court decide?

In a unanimous decision authored by Chief Justice John Roberts, the Court vacated and remanded McDonnell’s sentence. In other words, the Court sided with the Governor. However, the decision was still rather narrow. It rested on two central holdings:

First, the definition of an “official act.” The Court defined an “official act” as “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.'” Questions or matters must involve a “formal exercise of governmental power” and must be something specific and focused that is “pending” or may be brought “by law” before a public official. The Court ruled that the acts in question—setting up meetings, talking to officials and organizing events—did not fit under that definition. Concerned about the potential of prosecutors becoming overzealous and targeting behavior of ideological opponents, the Court sided with a narrower definition of “official acts.”

Second, the jury instructions in McDonnell’s original case were erroneous because they didn’t include the many limiting qualifications the Court defined. Because the jury wouldn’t know the limits of what connotes an “official act,” the jury could have found McDonnell guilty of acts that were not criminal.

The Court goes on to reject two claims made by McDonnell, the first of which is very important. The Court rejected McDonnell’s argument that the Hobbs Act and the honest services statute were unconstitutionally vague. Ultimately, the Court allows these laws to remain in place, but they have defined the term used therein, “official act,” to make it more specific.

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